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https://www.courtlistener.com/api/rest/v3/opinions/3041258/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-3984
___________
Kelvin Moore, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
David Inman, * Eastern District of Missouri.
*
Appellee. * [UNPUBLISHED]
___________
Submitted: October 4, 2006
Filed: October 17, 2006
___________
Before RILEY, MELLOY, and GRUENDER, Circuit Judges.
___________
PER CURIAM.
Missouri inmate Kelvin Moore (Moore) appeals the district court’s preservice
dismissal of his pro se 42 U.S.C. § 1983 complaint. Moore alleged David Inman, an
officer with the Caruthersville Police Department, searched his vehicle in violation of
the Fourth Amendment.
We grant Moore leave to appeal in forma pauperis. Following de novo review,
see Moore v. Sims, 200 F.3d 1170, 1171 (8th Cir. 2000) (per curiam), we conclude
preservice dismissal was inappropriate. It is not apparent on this record that success
on Moore’s claim would necessarily imply the invalidity of any state court conviction.
See Heck v. Humphrey, 512 U.S. 477, 487 n.7 (1994) (because of doctrines like
independent source, inevitable discovery, and harmless error, a damages suit for an
unreasonable search may lie even if the challenged search produced evidence that was
introduced at a state criminal trial resulting in § 1983 plaintiff’s still-outstanding
conviction), Moore, 200 F.3d at 1171-72 (noting footnote 7 and concluding a § 1983
unlawful-seizure claim was not barred by Heck). Further, there are no ongoing state
proceedings that would justify the district court’s abstention. See Younger v. Harris,
401 U.S. 37, 43-54 (1971) (holding, with some exceptions, federal courts cannot grant
injunctive relief that would interfere with ongoing state criminal prosecutions); Fuller
v. Ulland, 76 F.3d 957, 959 (8th Cir. 1996) (under certain circumstances, Younger
directs federal courts to abstain from hearing cases when there is an ongoing state
judicial proceeding).
Accordingly, we reverse the dismissal and remand for further proceedings in
accordance with this opinion.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1624364/ | 332 F. Supp. 767 (1971)
Sharon CANTRELL, Harold Branham, Petitioners,
v.
Oscar FOLSOM, as Chief of Police, Daytona Beach, Florida, Respondent.
Civ. No. 71-333.
United States District Court, M. D. Florida, Jacksonville Division.
July 29, 1971.
*768 Thomas A. Goldsmith, Daytona Beach, Fla., Morris W. Milton, Volusia County Legal Services, Daytona Beach, Fla., for petitioners.
Noah C. McKinnon, Jr., Coble, Stewart & McKinnon, Daytona Beach, Fla., for respondent.
ORDER
CHARLES R. SCOTT, District Judge.
On May 10, 1971, petitioners submitted their petitions for writs of habeas corpus attacking their convictions and detention as unlawful due to the unconstitutionality of the vagrancy ordinance under which they were arrested alleging it to be so vague, indefinite and overbroad as to constitute a denial of due process.
The particular ordinance in question reads: "It shall be unlawful for any person to commit, within the limits of the city, any act which is recognized by the Florida Statutes as a misdemeanor, and the commission of such act is hereby forbidden". Daytona Beach Code, § 29-1. The particular statute incorporated by reference reads as follows:
"Vagrants.Rogues and vagabonds, idle or dissolute persons who go about begging, common gamblers, persons who use juggling, or unlawful games or plays, common pipers and fiddlers, common drunkards, common night walkers, thieves, pilferers, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons who neglect their calling or employment, or are without reasonably continuous employment or regular income and who have not sufficient property to sustain them, and misspend what they earn without providing for themselves or the support of their families, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, idle and disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses or tippling shops, persons able to work but habitually living upon the earnings of their wives or minor children, and all able-bodied male persons over the age of eighteen years who are without means of support and remain in idleness, shall be deemed vagrants, and upon conviction shall be subject to the penalty provided in § 856.03."
Florida Statutes 856.02, F.S.A.
On May 25, 1971, after the Court had issued its order to show cause in the case at bar, the City of Daytona Beach moved to vacate the underlying convictions of these petitioners in what is alleged to be an attempt to moot the habeas corpus proceedings of the petitioners in this Court. It is further alleged that the only reasonable explanation for these dismissals is that respondent wishes to avoid a formal adjudication by the courts that the ordinance under which the arrests were made is unconstitutional, and that the respondent is aware of the unconstitutionality of the ordinance; this, it is alleged, would leave the door open to further arrests and harassment without the possibility of a head-on meeting of the issue.
Petitioners subsequently moved to amend the petitions praying leave to proceed as a class and a declaration that the ordinance is unconstitutional; this prayer was based upon the above-mentioned allegations. See Adderley v. Wainwright, 46 F.R.D. 97 (M.D.Fla. 1968), 272 F. Supp. 530 (M.D.Fla.1967); McNally v. Hill, 293 U.S. 131, 55 S. Ct. 24, 79 L. Ed. 2d 238 (1934); 28 U.S.C. § 2243. Petitioners seek to proceed as a class on behalf of all those who might fall and are falling subject to prosecution for violation *769 of the ordinance. It is alleged that joinder of all members of the class is impracticable, that there are questions of law and fact common to the class, that the claims or defenses of the representative parties are typical of the claims or defenses, of the class and that the representative parties will fairly and adequately protect the interests of the class. They further allege that the opposing parties in this action have acted or refused to act on grounds generally applicable to the class.
At a hearing in chambers on July 9, 1971, the Court indicated that it would be receptive to a representation from respondent that the arrests under the ordinance had ceased and no further such arrests would be made. At this point in the hearing, petitioners presented, much to the surprise of counsel for respondent, affidavits reflecting that persons were still being arrested pursuant to the ordinance contrary to the best advice of counsel for respondent. Counsel for respondent sought and the Court granted them time to verify the affidavits.
On July 17, 1971, this Court received a verification from counsel for respondent that the arrests under the ordinance were continuing and that, contrary to his advice, arrests in the future would be made. A letter to the Court reflects the names of 20 persons so arrested between June 7, 1971 and the date of the letter.
The above state of circumstances indictates that it is appropriate for the action to proceed as a class action. Rule 23, Federal Rules of Civil Procedure; Montgomery Ward & Co. v. Langer, 168 F.2d 182, 187 (8th Cir. 1948).
It has been suggested that this is a matter for a three-judge court to rule upon. The Court relies upon the language of the Supreme Court of the United States in several cases which imply that the prohibition against issuance of an injunction against enforcement of a state statute without calling a three-judge court is strictly construed, and does not apply to city ordinances. "The word `statutes', the Supreme Court says, is `a compendious summary of various enactments, by whatever method they may be adopted, to which a state gives her sanction and is at least sufficiently inclusive to embrace constitutional provisions'. [American Federation of Labor v. Watson, 327 U.S. 582 [66 S. Ct. 761, 90 L. Ed. 873] (1946)]. It does not include ordinances or statutes having only local application. [Ex parte Collins, 277 U.S. 565 [48 S. Ct. 585, 72 L. Ed. 990] (1928)]." Law of Federal Courts, Wright, § 50, speaking of 28 U.S.C. § 2281, which respondent urges as applicable. See Phillips v. United States, 312 U.S. 246, 61 S. Ct. 480, 85 L. Ed. 800 (1941) for the proposition that the three-judge court acts should be strictly construed. Although no injunction is sought in this action, the above authorities seem relevant because of the injunctive effects of a declaratory judgment.
Certainly the declaratory relief sought is available in the appropriate circumstances. See Federal Habeas Corpus, Sokol, § 6.2; United States v. Martin, 242 F.2d 701 (2d Cir. 1957):
`If the petitioner shows that he "is suffering and will continue to suffer, serious disabilities because of the law's complexities and not because of his fault," then the alternatives are to deny the petitioner a judicial remedy in the federal courtsan alternative that would reflect badly on our system of justice; to give him judicial access by means of habeas corpus; to give him judicial access not by habeas corpus but by some other means.'
Sokol, at page 79, citing from the opinion in Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968).
It appears that the facts averred under the existing circumstances present a real controversy between the parties having adverse legal interests of such immediacy and reality as to warrant a declaratory judgment. Altvater v. Freeman, 319 U.S. 359, 63 S. Ct. 1115, 87 L. Ed. 1450 (1943).
*770 The Court does not think that this is the sort of case the Supreme Court of the United States had in mind recently when it warned against the unnecessary interference of the federal court in pending prosecutions. Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669, 1971, is distinguishable from the very outset in the fact that pending prosecutions are not the only problem in this case and are only incidentally involved. There is indication that those who are awaiting trial would never be given the full spectrum of available state remedies. This is to be inferred from what has happened to persons arrested pursuant to the ordinance in the past, such as the original petitioners. The Supreme Court certainly did not disapprove of interference in prosecutions in the appropriate circumstances. Another distinguishing point is that in the instant case there is the definite problem of harassment which the Supreme Court in the Younger v. Harris line of cases said may be justification for interference in state matters. By continuing to enforce the ordinance in spite of the best advice of counsel that the ordinance is probably unconstitutional, the respondent has evidenced at least a degree of bad faith. See Duncan v. Perez, 445 F.2d 557, 5th Cir. 1971) indicating that there definitely are Court of Appeals for the Fifth Circuit, 1971, indicating that there definitely are circumstances which would overcome this branch of the abstention doctrine.
The facts in the instant case, which are not in dispute, differ significantly from those in Younger v. Harris, supra. There it is obvious from the language of Mr. Justice Black that the non-interference policy dictated there was directed at non-interference in prosecutions and that the underlying reasoning behind this policy, aside from the usual ill feelings that result from the state-federal conflict, was that there was an avenue open to vindicate the rights asserted by the complainants through the ordinary processes of the criminal prosecutions:
"In other words, the injury that Harris faces is solely `that incidental to every criminal proceeding brought lawfully and in good faith.'" Citing from Douglas v. City of Jeannette, 319 U.S. 157, 63 S. Ct. 877, 87 L. Ed. 1324 (1943), Younger v. Harris, 401 U.S. at 49, 91 S.Ct. at 753.
The conceded facts of the case before this Court show that there are no continuing prosecutions in which the petitioners may vindicate their fights, that the arrests are made, the petitioners immediately booked and released with no intention whatsoever to bring petitioners to trial. It can be for no other purpose than to harass the petitioners that these arrests are made; it can be for no other reason than to deny petitioners due process of law that they are never given their day in court; it can be for no other motive but one of bad faith that the arrests continue in the face of warning by counsel that the ordinance under which they are proceeding is probably unconstitutional; the Court believes these to be true for the reason that no other explanation has been offered.
There is an additional good reason for not requiring a three-judge panel in this case; that reason is pointed out by Judge Henry J. Friendly in Utica Mutual Insurance Co. v. Vincent, 375 F.2d 129, 131 n. 1 (2d Cir. 1967):
Congress could not have intended to require three judges to be assembled when decision could not possibly go in any manner save one.
In light of the reasons set out above and in light of a recent decision of a three-judge panel holding the very same language as continued in the state statute to be unconstitutional, this Court is inclined to hold 28 U.S.C. § 2281 does not require three judges when, as here, prior decisions make frivolous any claim that a state statute on its face is not unconstitutional. The reasons for convening an extraordinary court are inapplicable in such cases; the statute comes into play only when an injunction is *771 sought `upon the ground of the unconstitutionality' of a statute. There is no such ground when the constitutional issue is essentially frivolous. Bailey v. Patterson, 369 U.S. 31, 82 S. Ct. 549, 7 L. Ed. 2d 512 (1962). The case of Lazarus v. Faircloth, 301 F. Supp. 266 (S.D.Fla. 1969), vacated in order that the district court could review its decision in light of Younger v. Harris, supra, concluded that the state statute there in question (which is the identical statute incorporated in the instant case into the city ordinances by reference), Florida Statute § 856.02, F.S.A. is unconstitutional. The Court sees no reason why the ruling of the three-judge court in Lazarus on the question of constitutionality should not be followed.
With all due respect for the colorful and attractive language of this "charming grab bag of criminal prohibitions", and for the number of years it has been on the statute books, it is clear under recent cases of the Supreme Court of the United States that the statute is so overbroad as to include lawful conduct within its sweep and that the ordinance on its face is unconstitutional in violation of the First and Fourteenth Amendments. Coates v. City of Cincinnati, 402 U.S. 611, 91 S. Ct. 1686, 29 L. Ed. 2d 214, 1971, and Palmer v. City of Euclid, Ohio, 402 U.S. 544, 91 S. Ct. 1563, 29 L. Ed. 2d 98, 1971; Lazarus, supra.
The ordinance in Palmer was held to be so vague and lacking in ascertainable standards of guilt that it failed to give "a person of ordinary intelligence fair notice that his contemplated conduct is forbidden * * *", citing from United States v. Harriss, 347 U.S. 612, 74 S. Ct. 808, 98 L. Ed. 989 (1954), 402 U.S. at 545, 91 S.Ct. at 1564.
The ordinance here is very similar to the one challenged in Palmer, defining a "suspicious person" as "Any person who wanders about the streets or other public ways or who is found abroad at late or unusual hours in the night without any visible or lawful business and who does not give satisfactory account of himself".
It is apparent to the Court that neither the police nor a citizen can hope to conduct himself in a lawful manner if an ordinance which is designed to regulate conduct does not lay down ascertainable rules and guidelines to govern its enforcement. City of Cleveland v. Anderson, 13 Ohio App. 2d 83, 234 N.E.2d 304, approved in Coates, supra, 402 U.S. at 614-616, 91 S.Ct. at 1688-1689.
For what other reason than for harassment do the police in the instant action arrest persons and immediately let them go without any desire or intent to ever bring the persons to trial? When very recently, the Supreme Court of Florida has said that the very same words which are incorporated in this statute are constitutional, where else but to the federal courts are the petitioners to turn for relief? And what other relief than that sought will possibly do justice under the facts and circumstances before the Court?
The answers to the above questions are obvious and leave the Court but one course of action.
Therefore, it is
Ordered:
1. The petition for writ of habeas corpus, appearing moot, is denied.
2. Petitioners are allowed to maintain this action on behalf of the class.
3. Respondent's motion to dismiss is denied.
4. Petitioners' motion for summary judgment under Rules 56(a) and 56(e) of the Federal Rules of Civil Procedure, is granted.
5. It is hereby declared that the ordinance in question here, Ordinance of the City of Daytona Beach, Florida, 29-1 (incorporating by reference, Florida Statute 856.02, F.S.A.), is unconstitutional on its face and that the right of the petitioners here includes the right not to be arrested under color of such ordinance. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624414/ | 332 F. Supp. 223 (1971)
Seymour HAMILTON
v.
MARINE CARRIERS CORPORATION.
Civ. A. No. 70-2261.
United States District Court, E. D. Pennsylvania.
September 25, 1971.
*224 Morris M. Shuster, Philadelphia, Pa., for plaintiff.
Robert B. White, Jr., Philadelphia, Pa., for defendant.
OPINION AND ORDER
MASTERSON, District Judge.
This action was instituted by Seymour Hamilton, a seaman, to recover damages from defendant, his employer, under the Jones Act,[1] and general maritime law as a result of an accident which Hamilton sustained on February 20, 1969.
Hamilton contends that defendant is liable to him for personal injuries which he claims were caused by (1) the negligence of the defendant and/or his agents and (2) the unseaworthiness of defendant's vessel. Defendant has filed a motion for summary judgment which is presently before this court. For purposes of the motion, we will consider plaintiff's version as an accurate reflection of the events surrounding the accident.
On February 20, 1969, plaintiff while in the employ of defendant as a crew member on the SS Commander was injured when he stepped into an ice covered hole on a dock at Westhaven, Holland. The vessel which sailed from Philadelphia had been berthed at the dock for three days for the purpose of discharging a cargo of coal onto floating barges. The Port Authority of Amsterdam owned the dock and defendant exercised no control over it.
From the time the ship arrived at Westhaven to the day of the accident, *225 intermittent rain and snow fell and covered the pier, except for certain areas where a crane was located and where vehicles had worn down the snow. During this period, the ship's master, James W. Wood, went ashore approximately four times. Each time he inspected the dock area for dangerous conditions.
In order for a crew member to leave the pier area where the Commander was berthed and reach the public highway, it was necessary to pass through a guarded gate which was located about one-half mile from the vessel's gangway. This was the only available general route to travel from the vessel to the public highway. Throughout this half mile distance, the dock was approximately sixty feet wide and there were specific "widths" in the pier which one could follow to reach the gate.
On the date of his accident, plaintiff assumed the responsibilities of a "day worker" which means that he could have been assigned a job by the Chief Mate or Boatswain from 8 A.M. until 4 P.M. Plaintiff, however, did not receive an assignment, so he decided to go into Amsterdam for personal reasons.
While in Amsterdam, plaintiff bought some items, ate lunch and then returned to the pier in a taxi cab with the ship's steward. After leaving the taxi cab at the gate, plaintiff and the steward walked down the pier toward the SS Commander. While walking, plaintiff stepped onto an area of the road which appeared to him to be solid, but which gave way under plaintiff's weight causing him to fall on his face. He had stepped onto a pothole which the snow had concealed. The pothole was located approximately 250 to 300 feet from the gangway of the SS Commander. After his fall, plaintiff was taken to a hospital in Amsterdam where he was treated for a fractured left ankle.
Prior to the accident, plaintiff had gone into Amsterdam on two occasions. Both times he used the same route as the one used on the day of the fall.
At no time did the ship's master order or request any crew member to shovel a path from the vessel to the gate even though the ship had shovels aboard. Nor did he request the pier owner or stevedore personnel to clear a path. Captain Wood never gave any instructions to the crew that they were to walk on a particular area of the dock. Nor did he inquire as to the nature of the dock's surface.
For the reasons set forth below, defendant's motion for summary judgment will be denied as to both theories of liability advanced by the plaintiff.
I. LIABILITY UNDER THE JONES ACT
A. NEGLIGENCE OF DEFENDANT'S AGENT
In part, the Jones Act provides:
"Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply * * *"[2]
There is no question that plaintiff was a seaman and that his shore activities fell within the scope of his employment as required by the Act. See, e. g., Aguilar v. Standard Oil of New Jersey, 318 U.S. 724, 63 S. Ct. 930, 87 L. Ed. 1107 (1942). Under the Act, the gravamen of a seaman's action for personal injuries occurring in the course of employment is negligence.[3] And in Hopson v. Texaco, Inc., 383 U.S. 262, 86 S. Ct. 765, 15 L.Ed. *226 2d 740 (1965) (per curiam), the Supreme Court explained that "The Jones Act incorporates the standards of the Federal Employers' Liability Act, as amended, which renders an employer liable for the injuries negligently inflicted on its employees by its `officers, agents, or employees.'" (emphasis added).[4] See 45 U.S.C. § 51.
In this case, plaintiff asserts that he is entitled to recover from the defendant for the negligence of the Port of Amsterdam. This question raises two subsidiary issues: (1) was the Port of Amsterdam which owned the pier an agent of the defendant, and (2) if so, did the agent act negligently toward the plaintiff?
As to the first issue, plaintiff relies upon Carter v. Union Railroad, 438 F.2d 208 (3rd Cir. 1971). In Carter, a railroad employee brought an FELA action when he was injured while walking on property owned by General Motors Corporation en route to the job site of his employment with the railroad. Carter was part of a railroad crew whose daily starting point was a shanty located next to the tracks at a General Motors plant. The railroad had contracted with General Motors for its crew members to park their cars on GM's lot and thereafter traverse a dirt road that led to the shanty. Carter suffered injuries when he slipped on the muddy path. On these facts, the court reversed the lower court's directed verdict and held that Carter was entitled to a jury determination of the railroad's negligence on two distinct theories of liability.
First, the court determined that General Motors was the statutory agent of the railroad and hence responsible under that part of the Federal Employers' Liability Act which renders employers liable for the negligence of their "agents." We will consider the second basis of liability in connection with the alleged negligence of the defendant in failing to furnish plaintiff with a safe place to work. See Section IB, infra.
To support the conclusion that Carter's employer was liable for the negligent acts of General Motors, the court relied upon the Hopson case where the Supreme Court stated:
"We noted in Sinkler v. Missouri Pac. R. Co., 356 U.S. 326, 78 S. Ct. 758, 2 L. Ed. 2d 799, that the latter Act was `an avowed departure from the rules of the common law' (id., at 329, 78 S. Ct. 758), which, recognizing `[t]he cost of human injury, an inescapable expense of railroading,' undertook to `adjust that expense equitably between the worker and the carrier.' Ibid. In order to give `an accommodating scope * * * to the word "agents"' (Id., at 330-331, 78 S. Ct. 758), we concluded that `when [an] * * * employee's injury is caused in whole or in part by the fault of others performing, under contract, operational activities of his employer, such others are "agents" of the employer within the meaning of § 1 of FELA.'" (emphasis added) 383 U.S. at 263-264, 86 S.Ct. at 766. 15 L.Ed.2d at 742.
Thus, the Supreme Court established a two prong test of agency. First, the third party must be performing "operational activities," and secondly, that party must be "under contract."[5]
Plaintiff points out that "under the terms of the charter agreement" defendant assumed liability for any "wharfage" *227 not paid by the charterer. "Wharfage" is the fee charged the owner of a ship for the use of the dock. This would seem to indicate that the pier owner and defendant had a contractual relationship. But as it stands, the record does not adequately establish this fact.
Plaintiff also asserts that by providing the sole means for the crew to leave the vessel and return, the Port of Amsterdam performed an "operational activity" for the defendant. As the Supreme Court stated in Aguilar v. Standard Oil Company of New Jersey, supra:
"Men cannot live for long cooped up aboard ship without substantial impairment of their efficiency, if not also serious danger to discipline. Relaxation beyond the confines of the ship is necessary if the work is to go on, more so that it may move smoothly. No master would take a crew to sea if he could not grant shore leave, and no crew would be taken if it could never obtain it. Even more for the seaman than for the landsman, therefore, `the superfluous is the necessary * * * to make life livable' and to get work done. In short, shore leave is an elemental necessity in the sailing of ships, a part of the business as old as the art, not merely a personal diversion. * * *
The voyage creates not only the need for relaxation ashore, but the necessity that it be satisfied in distant and unfamiliar ports." (emphasis added) 318 U.S. at 733-734, 63 S.Ct. at 935, 87 L.Ed. at 1116.
Although narrowly read, Aguilar stands for the proposition that shore activities fall within a seaman's course of employment, plaintiff seeks to apply the broad rationale of the case so that any act which enables the seaman to enjoy shore leave constitutes an "operational activity." Considering the instruction of the Supreme Court in Hopson to give the term "agency" an "accommodating scope," we think that such a rule has merit. At the same time, it should be understood that a contractual relationship must exist between the owner or his agent and the negligent party to establish liability under the Jones Act. Thus, an owner does not assume liability for all acts of negligence toward the seaman on shore leave, rather only the acts of those with whom the owner has contracted to provide some product or service that enables the seaman to get ashore.
We hold, therefore that providing a means of ingress and egress from the SS Commander to shore constitutes an "operational activity" of the defendant, and if there is a contractual relationship between the Port and the defendant, then the jury could find that an agency relationship is established. See Carter v. Union Railroad, supra.
As owner of the pier, the Port of Amsterdam owed a duty to use reasonable care to insure that plaintiff would not injure himself while walking over it.[6] Although such a duty exists, it is by no means clear that it has been violated in this case. The Port of Amsterdam may have exercised reasonable care under the circumstances which included an intermittent rain and snow. And if the Port was not negligent, then regardless of the agency issue, the defendant is not liable either. But that is undoubtedly a question for the jury to decide at trial. Consequently, summary judgment on this theory of liability must be denied.
B. NEGLIGENCE OF THE DEFENDANT IN PERFORMING A NON-DELEGABLE DUTY
Aside from the alleged negligence of the pier owner for which the shipowner may be responsible, plaintiff *228 asserts that the defendant violated its non-delegable duty to exercise reasonable care to furnish him with a safe place to work. Clearly, the law imposes such a duty upon all shipowners. See, e. g., West v. United States, 361 U.S. 118, 80 S. Ct. 189, 4 L. Ed. 2d 161 (1959). Nevertheless, defendant argues that under the circumstances it owed no such duty to the plaintiff because his injury occurred approximately 250 to 300 feet from the vessel in an area on the dock over which defendant exercised no control.
To support this contention, defendant cites Paul v. United States, 205 F.2d 38 (3rd Cir. 1952), cert. denied, 346 U.S. 888, 74 S. Ct. 140, 98 L. Ed. 392. The Paul case involved an action by a seaman against a shipowner for personal injuries sustained as a result of a fall into a pit on a pier some 100 feet from the ship. As in this case, the shipowner had no right of control over the area. At the outset of its opinion, the court set forth the issues to be decided in the case:
"Other than in the immediate vicinity of a vessel's gangplank is a shipowner under a duty to provide safe means of passage from or to the vessel over a dock area over which the shipowner has no control and/or to inspect and give warning of the conditions prevailing along the dock's passageway?" 205 F.2d at 38.
After a review of the authority, the majority expressly held that the shipowner did not owe a duty to provide a safe means of passage over the pier or to inspect it and give warning of the dock's conditions. Chief Judge Biggs dissented vigorously:
"The shipowner did not have control of the dock but I cannot bring myself to the conclusion that the master of the `Moultrie' did not have a duty to the libellant, as a ward of the admiralty, to exercise reasonable diligence to make sure that the walkway, the customary way of egress from the vessel to the shore, was safe. If the master had exercised even slight care he would have been aware of the defect and could have warned Paul of the danger.
The pit in which Paul fell was within one hundred feet of the bow of the vessel, unguarded and unlighted. The accident occurred at night. Though Paul was going on shore leave he nonetheless was in the course of his employment. * * * Since the ship's master did not fulfill what I think was his duty to the seaman I conclude that the United States should be liable to him for damages. * * * Negligence within the purview of the Jones Act is to be construed liberally, bearing in mind that the obligation of a shipowner to his seamen is greater than that of the ordinary employer to his employees." 205 F.2d at 43.
See also, Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 69 S. Ct. 1317, 93 L. Ed. 1692 (1949), rehearing denied 338 U.S. 839, 70 S. Ct. 32, 94 L. Ed. 513. Despite the persuasiveness of this dissent, the Third Circuit has not yet expressly departed from the rules of law applicable to seamen which were established by the Paul case. Indeed, as recently as 1963, in Hagans v. Ellerman & Bucknall Steamship Company, 318 F.2d 563, 579 (3rd Cir. 1963) the circuit court reiterated that "[the shipowner] is not chargeable with the non-delegable duty of furnishing a safe place to work [on the dock], a location over which it [has no control or right of control]."
Other courts, particularly in the Second Circuit have followed this view. Most recently, in Dangovich v. Isthmian Lines, Inc., 327 F.2d 355 (2nd Cir. 1964), aff'g 218 F. Supp. 235 (S.D.N.Y. 1963) the Second Circuit affirmed a lower court opinion which denied relief under the Jones Act to a seaman who was injured while walking across a railroad trestle en route to his ship.[7] The lower court cited Paul for its conclusion *229 that the shipowner had no duty to provide the plaintiff with a safe means of egress or access to the ship beyond the gangway or to inspect and warn of dangerous conditions beyond that point. Likewise, in Wheeler v. West India SS Co., 205 F.2d 354 (2nd Cir. 1953), aff'g 103 F. Supp. 631 (S.D.N.Y. 1951), cert. denied, 346 U.S. 889, 74 S. Ct. 141, 98 L. Ed. 393, the Circuit Court affirmed another lower court opinion which espoused rules of law identical with those established by the Paul decision.[8]
Plaintiff argues that the Paul case has been overruled sub silentio by the Third Circuit's alternative holding in Carter v. Union Railroad, supra, and the Supreme Court's decision in Shenker v. Baltimore & Ohio R. Co., 374 U.S. 1, 83 S. Ct. 1667, 10 L. Ed. 2d 709 (1963).
The part of the Carter decision relied upon by the plaintiff held that:
"The FELA imposes upon the employer a nondelegable duty to use reasonable care to furnish his employees a safe place to work (citation omitted), and this duty extends beyond its premises and to property which third persons have a primary obligation to maintain. (Citing Shenker v. Baltimore & Ohio R.R. Co., supra. Other citations omitted). This duty includes a responsibility to inspect the third party's property for hazards and to take precautions to protect the employer from possible defects, and is separate and distinct from any negligence that may be attributable to General Motors. (Citing Shenker v. Baltimore & Ohio R.R., supra. Other citations omitted)." 438 F.2d at 210-211.
And the court imposed this duty even though "[t]he railroad exercised no control over the path, the sole responsibility for maintaining said property being General Motors'." 438 F.2d at 210. Plaintiff argues that once the existence of a duty is established in FELA cases to provide a safe place to work even on the "premises of third persons over which the railroad exercises no control and to inspect for dangerous conditions thereon," extension of these duties to Jones Act cases logically follows.
Defendant asserts that this court is constrained to hold otherwise by the Supreme Court's decision in Cortes v. Baltimore Insular Line, 287 U.S. 367, 53 S. Ct. 173, 77 L. Ed. 368 (1932). In that case, a seaman died allegedly as a result of the failure of the ship's master to give him proper care after he fell ill with pneumonia on the voyage. The defendant asserted that by terms of the Jones Act, the duties owed to railroad employees carried over to seamen; and since a railroad owner owed no duty to give maintenance or cure to a sick person, the defendant shipowner owed no such obligation either. Justice Cardozo, recognizing the possibility of a bad result, rejected defendant's interpretation of the Jones Act.
"The act for the protection of railroad employees [FELA] does not define negligence. It leaves that definition to be filled in by the general rules of law applicable to the conditions in which a casualty occurs. * * * Congress did not mean that the standards of legal duty must be the same by land and sea. Congress meant no more than this, that the duty must be legal, i. e., imposed by law; that it shall have been imposed for the benefit of the seaman, and for the promotion of his health or safety; and that the negligent omission to fulfill it shall have resulted in damage to his person. When this concurrence of duty, of negligence and of personal injury is made out, the seaman's remedy is to be the same as if a like duty *230 had been imposed by law upon carriers by rail" (emphasis supplied.) 287 U.S. at 377-378, 53 S.Ct. at 176, 77 L.Ed. at 372.
Defendant cites this case for the proposition that the existence of a duty in the owner and the corresponding right in the seaman does not depend on the state of the law under the FELA, e. g., under the Carter and Shenker decisions. We disagree with this interpretation of Cortes.
In order to effectuate the Act's remedial purpose, the unanimous Court in Cortes held that the duties owed by a railroad to its employees under the FELA do not constitute the complete spectrum of duties owed by a shipowner to a seaman under the Jones Act. Consequently, a seaman's right to cure and maintenance which he had enjoyed prior to the passage of the Act was not taken away by the new statute.
But the question presented in this case is not whether seamen possess rights in addition to those enjoyed by railroad employees (Cortes settled that issue), but rather whether seamen at least enjoy all of the rights and remedies extended to railroad employees under the Federal Employers' Liability Act. The language of the Jones Act itself could not be any clearer on this point.
"* * * all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply [to seamen]."[9] (emphasis supplied).
Thus, consistently with Cortes and the statute itself, it is apparent that (1) all rights or remedies extended to railroad employees apply to seamen, but the converse is not necessarily true and (2) these are not the seaman's exclusive rights or remedies, but they are in addition to any others he might enjoy by virtue of the peculiarities of his job. For these reasons, we are satisfied that the rules fashioned in Carter and Shenker apply to seamen, and these cases have overruled the Paul decision sub silentio.
By a different tack, it is also apparent that the reasoning of the Paul decision no longer retains any vitality in this Circuit. The foundation of the Paul case rests upon the proposition that a shipowner's responsibility does not extend beyond the physical confines of the ship to a location over which it has no control. In a related area involving the doctrine of unseaworthiness, both Supreme Court and Third Circuit cases decided after Paul indicate that these factors are no longer determinative.
In Alaska Steamship Co. v. Petterson, 347 U.S. 396, 74 S. Ct. 601, 98 L. Ed. 798 (1954) the Supreme Court affirmed a decision from the Ninth Circuit which expressly rejected the "relinquishment of control" rule which had been adopted by the Third and Second Circuits as a limitation upon the scope of the doctrine of unseaworthiness. Plaintiff, a longshoreman, suffered personal injuries while loading cargo onto the ship when a block, brought on board by a stevedoring company, his employer, broke. At the time of the accident, plaintiff was working on board the ship. The Circuit Court held that a shipowner could not escape liability for unseaworthiness either because control of that part of the ship where the unseaworthy condition occurred was surrendered to the stevedores or because the defective item was owned by a third party. 205 F.2d 478 (9th Cir. 1953).[10]
This doctrine was extended by the Court in Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 83 S. Ct. 1185, 10 L. Ed. 2d 297 (1963). In that case, the injuries occurred off the ship when the plaintiff, also a longshoreman, slipped on the dock on beans which had been spilled out of defective bags during the *231 unloading process. On these facts the Court held that "the duty to provide a seaworthy ship and gear, including cargo containers, applies to longshoremen unloading the ship whether they are standing aboard ship or on the pier." 373 U.S. at 215, 83 S.Ct. at 1191, 10 L. Ed. 2d 297 (emphasis supplied).[11]
The Third Circuit in Spann v. Lauritzen, 344 F.2d 204 (3rd Cir. 1965) faced the issue of unseaworthiness in an even more difficult factual context. There the injured longshoreman was operating a hopper on shore into which nitrate from the ship's hold was dumped by means of a shore based crane with a bucket on it. Plaintiff's job entailed opening the floor of the hopper to let the nitrate which had been discharged into it run out and into a truck waiting below to be filled. This he accomplished by pulling down on a heavy horizontal bar. Plaintiff suffered personal injuries when a bucket load of nitrate was dropped into the empty hopper and caused a sudden downward movement of the handle which struck him. He asserted that this was caused by a defective release mechanism on the hopper. The Circuit Court found that the plaintiff had a cause of action based upon unseaworthiness even though the accident occurred off the ship in an area over which the owner exercised no control because (1) plaintiff was engaged in the service of the vessel and (2) the large shore based hopper had sufficient connection with the ship to be within the subject matter of that doctrine. Similarly, in Byrd v. American Export Isbrandtsen Lines, Inc., 300 F. Supp. 1207 (E.D.Pa.1969) the court held that the owner's duty extended to a longshoreman who was injured while attempting to move a forklift truck "from the back to the front of the pier" for loading aboard defendant's vessel as cargo. And finally, in Law v. Victory Carriers, Inc., 432 F.2d 376 (5th Cir. 1970), cert. granted, 401 U.S. 936, 91 S. Ct. 937, 28 L. Ed. 2d 215 (1971), the court held that a longshoreman who was injured approximately 50 feet from the vessel on the pier while carrying cargo on a defective forklift machine was entitled to the protection of the unseaworthiness doctrine.
The crucial point in these cases is that application of the doctrine of unseaworthiness of vessel does not turn on whether the accident occurs on the ship or in an area over which the owner exercises control. Rather, the connection of the activity involved with the business of the ship is determinative.
While the scope of the owner's duties under the Jones Act for negligence and under general maritime law for unseaworthiness of the vessel are not congruent, undoubtedly the scope of duties under the former Act exceeds the scope of duties under the latter principle. By definition, the Jones Act applies in part to negligent acts which occur on the vessel, and the doctrine of unseaworthiness of the vessel determines in part the actual parameters of the vessel itself. Consequently, if the doctrine of unseaworthiness of the vessel gives rise to a duty in a particular factual context (e. g., in an uncontrolled area off the ship), then the Jones Act also applies and extends a duty (albeit a different duty) at least to the same physical location.
From this reasoning, it follows that the test to determine the scope of an owner's duty under the Jones Act must be at least as accommodating as the test under the unseaworthiness concept. Thus, for purposes of determining the scope of duties under the Jones Act, it is essential to reject immediately any factors which have already been rejected under the unseaworthiness doctrine. Otherwise, one runs the risk of saying that the Jones Act does not extend duties to a physical area which has been determined to be part of the vessel itself and covered by the unseaworthiness doctrine. Hence, under the Jones *232 Act, the absence of control and the fact that the accident occurred on shore some 250 to 300 feet from the vessel cannot be determinative.
Considering this line of cases as well as the decisions in Carter and Shenker under the Federal Employers' Liability Act, we conclude that the rule envisioned by Judge Biggs in Paul is the one which the Third Circuit would adopt today. We hold, therefore, that a shipowner has a non-delegable duty to furnish plaintiff with a safe means of ingress and egress from his place of employment and that the scope of this duty extends to the dock at which the ship is berthed. Moreover, the shipowner has a duty to use reasonable care to inspect the pier for hazards and take reasonable precautions to protect crew members from any possible defects.[12]
In so holding, we are particularly mindful of the Supreme Court's instruction that "[t]he act is to be liberally construed in aid of its beneficent purpose to give protection to the seamen and those dependent on his earnings." Cortes v. Baltimore Insular Line, 287 U.S. at 375, 53 S.Ct. at 176, 77 L.Ed. at 372.[13]
We think Judge Sobeloff eloquently and accurately expressed part of the rationale behind a liberal construction of the Jones Act when he stated:
"It is more consonant with justice and the spirit of the Jones Act for the shipowner to be held to its statutory obligation in the present action and then for it to bring suit as subrogee against Abhiram in Trinidad where the shipowner does business regularly, than to remit the plaintiffs [seamen] to their remedy against Abhiram in distant Trinidad." Hopson v. Texaco, Inc., 351 F.2d 415 (4th Cir. 1965) (dissenting opinion), rev'd, 383 U.S. 262, 86 S. Ct. 765, 15 L. Ed. 2d 740 (1966).
Without such recourse, practically speaking, the seaman has no remedy at all. As indicated above, Congress intended to benefit seamen by passing the Act, it did not intend to enact a nugatory remedy.
Since the jury must decide (1) whether defendant used reasonable care to furnish a safe means of ingress and egress in this case and (2) whether the defendant used reasonable care to inspect the pier and correct or warn of any possible dangers, summary judgment for the Jones Act claim based on defendant's negligence also must be denied.
II. UNSEAWORTHINESS OF THE VESSEL
In addition to the loading and unloading processes with which all of the cases cited in Section IB dealt, the doctrine of unseaworthiness of the vessel also extends to an appurtenance to the ship. Cf., Morales v. City of Galveston, 370 U.S. 165, 82 S. Ct. 1226, 8 L. Ed. 2d 412 (1962). To decide whether an area constitutes an appurtenance to the ship, one does not ask whether the owner controls the location or whether the place is on board, rather under Spann the tests are (1) whether the plaintiff is engaged in the service of the ship and (2) whether the pier has sufficient connection with the ship to be within the subject matter of the unseaworthiness doctrine. Without actually deciding whether the pier constitutes an appurtenance, we point out that because it facilitates the business of the ship both in permitting the discharge of cargo as well as permitting *233 the crew to get ashore, such a conclusion at least has plausibility.
Nevertheless, this is an exceedingly close case, and to label a pier an appurtenance to the ship would significantly expand the doctrine. Because the Supreme Court has granted certiorari in Law v. Victory Carriers, Inc., supra, we prefer to await that decision which may sharpen the definition of unseaworthiness before facing this issue.[14] Consequently, we will allow the question to go to the jury in the form of a separate interrogatory, and if necessary, we will rule on the issue in a motion for judgment n. o. v. This decision in no way prejudices the defendant since in any event he must go to trial on the issue of liability under the Jones Act, and the evidence to defend against either claim is practically the same.
NOTES
[1] 46 U.S.C. § 688.
[2] 46 U.S.C. § 688.
[3] See DeZon v. American President Lines, 318 U.S. 660, 63 S. Ct. 814, 87 L. Ed. 1065 (1943); Beadle v. Spencer, 298 U.S. 124, 56 S. Ct. 712, 80 L. Ed. 1082 (1936); Armit v. Loveland, 115 F.2d 308 (3rd Cir. 1940); Wehe v. United States, 130 F. Supp. 768 (E.D.Pa.1955). See generally, Gilmore & Black, Admiralty, § 6-3 (1957); 2 Norris, The Law of Seaman, 844 (2nd Ed. 1962).
[4] Hopson arose in the following factual context. Two seamen became ill in a foreign port and were unable to continue the voyage. Federal law requires that such incapacitated seamen be taken to a United States Consul where their return to the United States could be arranged. Accordingly, the ship's master hailed a taxi cab to transport the ill seamen, but en route to the Consul's office one was killed and the other seriously injured. The district court determined that Texaco was liable for the negligence of the taxi driver, but the court of appeals reversed. The Supreme Court agreed with the district court.
[5] In Carter, the Third Circuit emphasized both the contractual relationship between Union Railroad and General Motors and the fact that the parking lot aided in the operational activities of the railroad.
[6] Recognizing this duty and the fact that personal injury occurred, one asks what remedy a "railroad employee would enjoy under similar circumstances." The answer follows that the FELA would permit him to recover from his employer if the negligent party were his employer's agent. Consequently, a seaman has the same remedy. See Section IB, infra, particularly the Cortes case.
[7] The opinion is not clear as to whether the trestle was located on the deck itself. In any case, his fall occurred near the vessel.
[8] Other cases supporting the Paul case's holding are: D'Costa v. U.S. Lines Co., 227 F. Supp. 180 (S.D.N.Y.1964); Martinez v. S.S. Hawaiian Retailer, 1963 A.M.C. 1188 (S.D.Ga.1963); and Jacobson v. Columbia Hudson Lumber Co., 1959 A.M.C. 468 (Cir.Ct.Or.1958). At least two courts have questioned the result. See Bradshaw v. The Carol Ann, 163 F. Supp. 366 (S.D.Tex.1956); Williamson v. Western-Pacific Dredging Corp., 304 F. Supp. 509 (D.Or.1969).
[9] 46 U.S.C. § 688.
[10] See also, Rogers v. United States Lines, 347 U.S. 984, 74 S. Ct. 849, 98 L. Ed. 1120 (1954).
[11] See also, Thompson v. Calmar Steamship Corporation, 331 F.2d 657 (3rd Cir. 1964), cert. denied, 379 U.S. 913, 85 S. Ct. 259, 13 L. Ed. 2d 184; Hagans v. Ellerman & Bucknall Steamship Co., 318 F.2d 563 (3rd Cir. 1963).
[12] We need not and do not decide whether this duty extends beyond the pier.
[13] See Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 69 S. Ct. 1317, 93 L. Ed. 1692 (1949), rehearing denied, 338 U.S. 839, 70 S. Ct. 32, 94 L. Ed. 513; Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S. Ct. 246, 87 L. Ed. 239 (1942); Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 59 S. Ct. 262, 83 L. Ed. 265 (1939); Cox v. Roth, 348 U.S. 207, 75 S. Ct. 242, 99 L. Ed. 260 (1954); The Arizona v. Anelich, 298 U.S. 110, 56 S. Ct. 707, 80 L. Ed. 1075 (1936), rehearing denied, 298 U.S. 692, 56 S. Ct. 945, 80 L. Ed. 1409. See generally, G. Gardener, Remedies for Personal Injuries to Seamen, Railroad and Longshoremen, 71 Harv.L.Rev. 438 (1959).
[14] This conclusion has no effect on our discussion in Section IB because regardless of the final test, the Supreme Court has already rejected control and whether the accident occurred on board or ashore as non-crucial factors. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624429/ | 15 So. 3d 593 (2009)
STRACHAN
v.
STATE.
No. 3D09-1602.
District Court of Appeal of Florida, Third District.
July 15, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624403/ | 15 So. 3d 56 (2009)
The WILLOWS
v.
STATE of Louisiana, DEPARTMENT OF HEALTH & HOSPITALS.
No. 2008-OC-2357.
Supreme Court of Louisiana.
May 5, 2009.
Rehearing Denied June 19, 2009.
*57 Waitz & Downer, Joseph L. Waitz, Houma, for applicant.
Taylor, Porter, Brooks & Phillips, Jennifer Michele Sigler, David J. Shelby, II, Baton Rouge, William A. Stark, APLC, William Anthony Stark, Houma, Carlos Alberto Romanach, Fernin Farrell Eaton, Pamela Miller Perkins, Baton Rouge, for respondent.
VICTORY, J.
We granted this writ application to determine whether the First Circuit Court of Appeal has jurisdiction to consider an appeal of a party aggrieved by a judgment of the Nineteenth Judicial District Court in an action brought pursuant to the Louisiana Procurement Code, La. R.S. 39:1551, et seq. (the "Procurement Code"). After reviewing the record and the applicable law, we affirm the judgment of the court of appeal and hold that the plaintiff has no right to appeal the decision of the district court under La. R.S. 39:1691(C) to the court of appeal.
FACTS AND PROCEDURAL HISTORY
This action arises from a lease dispute between the State of Louisiana and The Willows, a partnership comprised of four individuals, Robert Burns, Rodney Burns, Paul Davenport and Joseph Waitz. On *58 April 3, 1978, Robert Burns[1] and the Louisiana Department of Health and Human Resources ("DHHR")[2] entered into a five-year lease contract for an apartment complex, The Willows, in Houma, Louisiana owned by the plaintiff. The lease provided housing for participants of the residency program at the Leonard J. Chabert Medical Center. The original five-year lease was renewed in 1983, and then again in 1988 on a month-to-month basis. Throughout the lease period, numerous disputes arose concerning the maintenance of the apartments, and LSU-HSC eventually decided to locate other resident housing. In December of 2004, The Division of Administration, Office of Facility Planning and Control, solicited and received bids to lease other resident housing pursuant to the competitive bid process. The bid received from Burns/Willows was deemed to be non-responsive, and on December 8, 2004, LSU-HSC sent notice of their intent to vacate the premises effective January 31, 2005, and vacated the apartments.
On April 18, 2005, The Willows filed a contract controversy complaint with the Chief Procurement Officer. Before a decision was rendered, The Willows also filed suit in the district court against DHHR on May 26, 2005 for breach of contract.[3] On June 15, 2005, The Willows' contract controversy complaint was denied by the Chief Procurement Officer's designee, Jerry Jones. The Willows filed an appeal to the Commissioner of Administration, which the Commissioner considered and denied in a written opinion.
The Nineteenth Judicial District Court held a hearing on the merits of The Willows' administrative appeal of the Commissioner of Administration's decision on June 18, 2007.[4] The district court affirmed the decision of the Commissioner on the merits and the judgment was signed on June 28, 2007. On July 30, 2007, The Willows filed a Petition for Devolutive Appeal, appealing the district court's June 28, 2007, judgment. On August 29, 2007, the Division of Administration filed a Motion to Strike The Willows' Petition for Devolutive Appeal. On October 15, 2007, the district court granted the Division's motion and that ruling was reduced to judgment on November 9, 2007.
On October 29, 2007, The Willows filed a second Petition for Devolutive Appeal, appealing again that judgment signed on June 28, 2007, and the judgment rendered on October 15, 2007 (but signed on November *59 9, 2007), asserting the right to appeal based on Louisiana Code of Civil Procedure articles 2082 and 2083. On January 2, 2008, the district court granted The Willows a devolutive appeal from the judgment rendered on October 15, 2007.
On March 11, 2008, the First Circuit Court of Appeal, issued a Rule to Show Cause why The Willows' appeal should not be dismissed. On April 29, 2008, the court of appeal dismissed The Willows' appeal, finding that it did not have appellate jurisdiction over the district court's November 9, 2007 judgment because it was an unappealable, interlocutory judgment under La. C.C.P. art. 1841. Further, the court found that it did not have appellate jurisdiction over the district court's June 28, 2007 judgment, citing Republic Fire and Cas. Ins. Co. v. State of Louisiana, Div. of Admin., Office of State Purchasing, 05-2001 (La.App. 1 Cir. 12/28/06), 952 So. 2d 89, for the holding that no appeal lies from a decision of the district court under the Procurement Code. The Willows v. State of Louisiana, Department of Health and Hospitals, 08-263 (La.App. 1 Cir. 4/29/08). We granted the Willows writ application to consider this issue. The Willows v. State of Louisiana, Department of Health and Hospitals, 08-2357 (La.11/26/08), 997 So. 2d 541.
DISCUSSION
The Procurement Code, with certain exceptions, governs contracts entered into by the State for the procurement of supplies, services, or major repairs as therein defined. La. R.S. 39:1673 applies to contract controversies, including breach of contract, mistake, misrepresentation, or other cause for contract modification or recision, and gives the chief procurement officer or his designee the authority to resolve any controversy, prior to the commencement of an action in court. As this case involves a lease dispute between a private party and the State, it is governed by the Procurement Code, specifically La. R.S. 39:1673. That statute provides that if the controversy is not resolved by mutual agreement, the chief procurement officer must promptly issue a decision in writing. La. R.S. 39:1673(C). That decision is final and conclusive unless the decision is fraudulent or the contractor has timely appealed administratively to the commissioner of administration in accordance with La. R.S. 39:1685. La. R.S. 39:1673(E).
La. R.S. 39:1685 provides that the contractor must file its appeal with the commissioner within 14 days of the receipt of the decision under La. R.S. 39:1673(C) and that the commissioner must decide the controversy within 14 days. La. R.S. 39:1685(B)(C). This decision shall be final and conclusive unless fraudulent or unless the contractor has timely appealed an adverse decision of the commissioner to the court in accordance with La. R.S. 39:1691(C). At the time this contract was entered into, La. R.S. 39:1691(C) provided:
Actions by or against the state in connection with contracts
....
C. Actions under contracts or for breach of contract. The Nineteenth Judicial District Court shall have exclusive venue over an action between the state and a contractor who contracts with the state, for any cause of action which arises under or by virtue of the contract, whether the action is on the contract or for a breach of the contract or whether the action is for declaratory, injunctive, or other equitable relief.
La. R.S. 39:1691. The discrete issue presented in this case is whether a party aggrieved by a decision rendered by the Nineteenth Judicial District Court under La. R.S. 39:1691(C) has a right of appeal to the First Circuit Court of Appeal.
*60 Generally, the concept of allocation of jurisdiction in civil actions is trial in the district court, with the constitutional right to appeal to the court of appeal, La. Const. art. V, § 10,[5] and to seek discretionary review by the Supreme Court, La. Const. art. V, § 5.[6]Alex v. Rayne Concrete Service, 05-1457 (La.1/26/07), 951 So. 2d 138, 144 (citing Frank L. Maraist and Harry T. Lemmon, 1 Louisiana Civil Law Treatise: Civil Procedure (West 1999)). An appeal "is the exercise of the right of a party to have a judgment of the trial court reversed, modified, set aside or revised by an appellate court." La. C.C.P. art.2082. A party may appeal (1) from a final judgment in actions in which appeals are given by law; (2) an interlocutory judgment only when expressly provided by law; and (3) from a judgment reformed in accordance with an additur or remittitur. La. C.C.P. art.2083. A final judgment in a civil case is generally appealable to the intermediate appellate court as a matter of right. Alex v. Rayne Concrete Service, supra at 144.
La. Const. art. V, § 16 provides that "[a] district court shall have appellate jurisdiction as provided by law." This Court has held that judicial review of the decision of an administrative agency is an exercise of a court's appellate jurisdiction pursuant to La. Const. art. V, § 16(B), rather than a district court's original jurisdiction under La. Const. art. V, § 16(A). Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Bd., 01-185 (La.10/16/01), 797 So. 2d 656, 660; In re American Waste & Pollution Control, 588 So. 2d 367, 371 (La. 1991). This Court reasoned that "original jurisdiction refers to judicial adjudications in the first instance and `designates the adjudicative tribunal in which the initial adjudication is made;' it does not refer to judicial review of decisions of administrative agencies." Id. (cites omitted). Further, "for the purpose of judicial review of administrative action, district courts are courts of limited jurisdiction and only have appellate jurisdiction to review administrative decisions as provided by the legislature or constitution." Metro Riverboat, supra (citing Loop, Inc. v. Collector of Revenue, 523 So. 2d 201, 203 (La.1987)). "Additionally, the existence of a specific statutory procedure generally implies a legislative intent that the special statutory procedure be the exclusive means of obtaining judicial review in the situations to which it applies." Id.
Thus, it is clear that the district court is exercising its appellate jurisdiction when hearing cases under La. R.S. 39:1691(C) and La. R.S. 39:1691 neither grants nor prohibits an appeal from the district court's decision. Because of the absence of any language granting or prohibiting an appeal to the First Circuit and because an appeal would ordinarily be allowed under the Code of Civil Procedure from a final judgment of a district court, we do not find this statute to be clear and unambiguous; therefore, we will look to the purpose of the law and the context in which the words of the statute occur, and *61 also to the legislative history to determine the legislature's intent. La. C.C. arts. 9, 10. The version of La. R.S. 39:1691(C) that applies to this action was enacted by Acts 1979, No. 715, § 1. There is no indication from the legislative history of that Act whether the legislators intended that an appeal be allowed to the First Circuit. However, the history leading up to the 2008 amendment to that statute provides guidance which we can use to interpret the statute.
In 2006, the First Circuit decided Republic Fire, supra. In Republic Fire, the court held that an appeal of a district court decision under La. R.S. 39:1691(A) was not allowed based on the following: (1) the statute itself did not provide for an appeal and according to Metro Riverboat, Ass., Inc., supra, when an administrative agency statute establishes a specific procedure for judicial review of an agency's action, a litigant can invoke the reviewing court's jurisdiction only by following the statutorily prescribed procedure, unless there can be found within the act a genuine legislative intent to authorize judicial review by other means; (2) the Louisiana Administrative Procedure Act, which is intended to fill gaps in other laws governing the specific agency, only allows an appeal when there is a "final decision or order in an adjudication proceeding" as set forth in La. R.S. 49:964(A)(1) and there is no adjudication under La. R.S. 39:1691(A) because hearing and notice are not required under that statute; and (3) the matter before the district court was not transformed into an ordinary proceeding just because an injunction was sought in the district court. 952 So.2d at 95-97.
In response to this opinion, the Division of Administration supported Senate Bill 574 in the 2008 Legislative Session which, by Acts 2008, No. 789, § 1, amended La. R.S. 39:1691 to add Paragraph (E), which now provides as follows:
Writs or appeals; district court decisions. Any party aggrieved by a final judgment or interlocutory order or ruling of the Nineteenth Judicial District Court may appeal or seek review thereof, as the case may be, to the Court of Appeal, First Circuit or the Supreme Court of Louisiana, as otherwise permitted in civil cases by law and the constitution.
Section 2 of Acts 2008, No. 789 added the following: "[t]his Act shall not apply to any claim or controversy arising out of any contract or agreement executed prior to August 1, 2008."
When testifying before Senate Committee Judiciary A on April 15, 2008, representatives of the Division of Administration presented Senate Bill 574, which only contained the language in Paragraph (E) of the statute to provide for an appeal (with no effective date). The Division's representatives testified that prior to Republic Fire, appeals had routinely been allowed to the First Circuit and it had always been the Division's belief that such appeals were allowed. They further testified that appeals to the First Circuit should be allowed because of the need for uniformity in Procurement Code issues, which is lacking when 12 different district court judges are reaching different outcomes. The Senate Bill passed from the committee favorably.
On June 5, 2008, the Division's representatives testified before the House Committee on Judiciary in support of Senate Bill 574. The Division repeated the reasons for supporting the bill, and, for the first time, supported an amendment which provided that the Act would not apply to claims or controversies arising out of contracts executed before January 1, 2007. When asked why this amendment was necessary, *62 the Division's representatives stated that it was not case specific, but was a recent compromise in order not to effect older cases that were "in the pipeline" and had been litigated and the parties did not want the right to appeal to apply to their cases. The Division's representatives indicated that prior to this recent compromise, it had envisioned the statute would be retroactive, as it is a procedural statute. After this discussion, Representative Connick put forth an amendment, which was adopted and which contained the language that eventually appeared in Acts 2008, No. 789, § 2, providing that the "Act would not apply to any claim or controversy arising out of any contract or agreement executed prior to August 1, 2008."
In light of this discussion which resulted in the addition of language making the statute prospective only, we find that the legislature did not intend that the Procurement Code provide a right of appeal relative to any claims or controversies arising out of any contract executed prior to August 1, 2008, either before the 2008 amendment or afterward. For if the original provisions of La. R.S. 39:1691 provided a right of appeal, it would have been entirely illogical to put in an amendment allowing an appeal but then limiting its effect to cases or controversies arising out of contracts entered into after August 1, 2008. In addition, the language providing prospective application from August 1, 2008 that was added to Acts 2008, No. 789 would be meaningless if the existing statute already allowed an appeal for those claims. While it is unusual to see the legislature make a procedural, and thus retroactive, statute prospective only, it is not forbidden.
Further, although La. R.S. 39:1553 provides that "[t]o the extent not inconsistent with the particular provisions of the Chapter, the principles of Louisiana law shall supplement its provisions," and an appeal would be allowed under La. C.C.P. arts.2082 and 2083, an appeal to the court of appeal is not allowed in this case. Pursuant to Metro Riverboat, supra, "the existence of a specific statutory procedure generally implies a legislative intent that the special statutory procedure be the exclusive means of obtaining judicial review in the situations to which it applies." 797 So.2d at 660. The exclusive means of obtaining judicial review under La. R.S. 39:1691 is an appeal to the Nineteenth Judicial District Court. Certainly, the First Circuit can grant a writ application in cases decided under La. R.S. 39:1691 prior to its amendment in 2008, and if the Nineteenth Judicial District Court is indeed issuing conflicting decisions, the First Circuit may decide to exercise its supervisory jurisdiction.
In addition, at the district court, the plaintiff argued that, unlike a case decided under La. R.S. 39:1691(A) (the statute involved in Republic Fire, supra), a case decided under La. R.S. 39:1691(C) does involve an "adjudication" under the Louisiana Administrative Procedure Act ("LAPA"), and therefore an appeal is permitted. La. R.S. 49:965 provides that under the LAPA, "[a]n aggrieved party may obtain a review of any final judgment of the district court by appeal to the appropriate circuit court of appeal [and that] [t]he appeal shall be taken as in other civil cases." However, "the LAPA was not intended to supersede the more specific provisions of other administrative acts." Metro Riverboat, supra at 662; Corbello v. Sutton, 446 So. 2d 301, 303 (La.1984). "Rather, it was intended to create procedures were none exist." Id. Under the Procurement Code, a specific hearing and review process is provided for; thus, the review provisions of the LAPA cannot supercede them.
*63 Lastly, plaintiff appears now to argue that its constitutional rights are being denied because it cannot appeal to the First Circuit. "It is well-settled that a constitutional challenge may not be considered by an appellate court unless it was properly pleaded and raised in the trial court below." Vallo v. Gayle Oil Co., 94-1238, (La.11/30/94), 646 So. 2d 859, 864-65.[7] Plaintiff had an opportunity to make this assertion when the trial court granted LSU-HSC's motion to strike plaintiff's devolutive appeal on November 9, 2007 and did not do so. We note that plaintiff has not pointed to any specific constitutional provision that has been violated in this case and we can not discern any constitutional basis for such a challenge.
DECREE
For the reasons stated herein, the judgment of the court of appeal is affirmed. AFFIRMED.
NOTES
[1] Although the lease was entered into between Robert Burns, Jr. and the State of Louisiana, Department of Health and Human Resources, in an "Affidavit Attesting That a Public Lease is Being Contemplated" attached to the lease, the parties to the lease were listed as Robert A. Burns, Jr., Henry T. Burns, and Joe Waitz. The defendants have argued that The Willows is not the proper party to bring this contract dispute claim; however, we did not grant this writ to consider this claim or the merits of the underlying claim.
[2] In 1991, the legislature transferred DHHR hospitals to the Louisiana Health Care Authority (LHCA). In 1997, these hospitals were transferred from LHCA to the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College ("LSU"). The LSU Health Sciences Center-New Orleans ("LSU-HSC") was made responsible for several hospitals, including the Leonard J. Chabert Medical Center. La. R.S. 17:1519.2.
[3] On November 14, 2005, The Willows filed a "First Supplemental and Amended Petition to Add Defendants" in the district court, adding as defendants the Board of Supervisors of LSU, the State of Louisiana, through the Division of Administration; Jerry Jones, and Patrick Gibbs. The individual defendants were later dismissed.
[4] On October 16, 2006, the district court rejected The Willows' request for a trial de novo, ruling that the matter was before it on judicial review, rather than original hearing.
[5] La. Const. art. 5, § 10(A) provides:
(A) Jurisdiction. Except as otherwise provided by this constitution, a court of appeal has appellate jurisdiction of (1) all civil matters, including direct review of administrative agency determinations in workers' compensation matters as heretofore or hereafter provided by law, (2) all matters appealed from family and juvenile courts, and (3) all criminal cases triable by a jury, except as provided in Section 5, Paragraph (D)(2) of this Article. It has supervisory jurisdiction over cases which arise within its circuit.
[6] La. Const. art. 5, § 5(A) provides in part:
(A) Supervisory Jurisdiction; Rule-Making Power; Assignment of Judges. The supreme court has general supervisory jurisdiction over all other courts....
[7] More recently, this Court explained that the constitutional challenge must be specifically pleaded and the grounds of the claim particularized. Taylor v. Clement, 06-2518 (La.2/2/07) 947 So. 2d 721; see generally Frank L. Maraist, 1 Louisiana Civil Law Treatise: Civil Procedure, § 14.5, pp. 523-525 (2nd ed.2008). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624445/ | 15 So. 3d 806 (2009)
Emilio BLAISDELL, Appellant,
v.
STATE of Florida, UNEMPLOYMENT APPEALS COMMISSION, Appellee.
No. 4D08-3511.
District Court of Appeal of Florida, Fourth District.
July 22, 2009.
Emilio Blaisdell, Boston, MA, Pro Se.
John D. Maher, Tallahassee, for appellee.
PER CURIAM.
The claimant, Emilio Blaisdell, appeals a final order of the Unemployment Appeals Commission, which upheld the appeals referee's findings that the claimant was disqualified from receiving unemployment compensation benefits and obligated to repay benefits initially awarded by the claims adjudicator. Claimant contends that the employer's appeal of the initial *807 benefits determination was untimely. We agree. Because the appeals referee's determination that the employer's appeal was timely is not supported by competent substantial evidence, we reverse the order of the Unemployment Appeals Commission.
On January 3, 2007, the employer, PDQ Internet Auctions LLC, initially responded to claimant's unemployment claim by stating on a form that the claimant, Emilio Blaisdell, had quit because of a "disagreement w/manager's policy." The unemployment division's original notice of determination stated that the claimant was discharged by the employer "for instigating conflict on the job" and that "[n]o information has been submitted which substantiates misconduct." The notice of determination thus awarded the claimant unemployment benefits. The notice further advised that the employer had the right to appeal the decision within twenty days and indicated that the notice was mailed to the employer's address at 2599 N. Federal Highway in Ft. Lauderdale on February 22, 2007.
On May 24, 2007, well after the appeal time had run, Scott Balson, the CEO of the employer, wrote to "Unemployment Compensation" and indicated that the claim was fraudulent because claimant had quit his employment. As for his delay in responding, he indicated that, "[t]he timing is unfortunate; however the response to our protest just crossed my desk." On June 25, 2007 and August 2, 2007, Balson wrote additional letters to the "Unemployment Compensation Program" again claiming that the claimant had quit his job.
The appeals referee held a telephone hearing on the employer's appeal on September 17, 2007. Balson testified that he did not receive the February 22 decision awarding benefits. He said he first learned of the decision when he received an April 12 document, a "UCT1," that showed the charges to his tax rate record. He immediately called and spoke to a Ms. McCloud. He was told to send a protest letter. He did that in a letter dated May 24. He testified:
I've got seven people in a start up business and we're overwhelmed and I'm I'm apologetic if something took three weeks from the time that it was received by us for it to reach my desk, but sometimes, you know, you even get a grace period of a month to pay a bill.
The appeals referee found:
The claimant (sic) did not receive the adverse determination of the claims adjudicator mailed to the employer at its address of record on February 22, 2007. The employer filed its appeal on May 24, 2007, within 20 days of learning of the determination.
Florida Statute section 443.151(4)(b)1 provides:
The claimant or any other party entitled to notice of a determination may appeal an adverse determination to an appeals referee within 20 days after the date of mailing of the notice to her or his last known address or, if the notice is not mailed, within 20 days after the date of delivery of the notice.
The statute contains no "good cause" exception. Pelletier v. State, Unemployment Appeals Commn., 761 So. 2d 413 (Fla. 2d DCA 2000).
The face of the notice of determination indicates that it was mailed to the employer on February 22, 2007. The employer has never disputed that it was mailed on that date, contending only that he never received it. In fact, the appeals referee affirmatively found that the notice was "mailed to the employer at its address of record on February 22, 2007." Thus, under the express terms of the statute the employer had only until March 14, 2007 to *808 file its appeal. It is undisputed that the appeal was not filed until May 24, 2007, more than two months late.
In defense of permitting the untimely appeal, the UAC argues that this court should apply the doctrine of equitable tolling, citing Machules v. Dept. of Admin., 523 So. 2d 1132, 1133 (Fla.1988). However, in that case the court found the equitable tolling doctrine applicable for two reasons: 1) the late filer had been misled or lulled into inaction by the opponent; and 2) the late filer had timely raised the issue, only in the wrong forum. Id. at 1134. Neither condition applies in this case. The employer's excuse that it was a small company "overwhelmed" with work was insufficient to invoke equitable tolling or any general due process exceptions to the statutory time-frame. Cf. Holmes v. City of West Palm Beach, 627 So. 2d 52 (Fla. 4th DCA 1993) (recognizing judicially created exceptions to the rule and statute in certain individual circumstances, such as when the claimant contends he never received the notice of hearing and notice of determination).
The appeals referee's finding that "[t]he employer filed its appeal on May 24, 2007, within 20 days of learning of the determination" is not supported by the record. The employer's CEO admitted that he learned of the determination when he received the April 12 document, a "UCT1," which showed the charges to his tax rate record. He testified that he immediately contacted Ms. McCloud at the Division and was told to send a protest letter. He did so in a letter dated May 24.
We note that the record does not establish exactly when the employer's CEO learned of the adverse determination, because it does not show when he received the April 12 UCTI form. However, Florida law's five-day tolling provisions for service by mail recognize that documents should be received within five days of mailing. See e.g. Appel v. Florida Dept. of State, Div. of Licensing, 734 So. 2d 1180, 1182 (Fla. 2d DCA 1999) (applying five day tolling provision in Florida Administrative Code Rule 28-5.103); Beacon v. Dept. of Ins., State of Florida, 656 So. 2d 197, 198-99 (Fla. 1st DCA 1995) (same). Thus, the employer, who admits receipt of the April 12 UCTI, should have received it by April 17. He testified that he immediately called the division and was told to mail a protest letter. Yet, he waited until May 24 to write his protest letter, some 37 days later. The appeals referee's finding that the employer filed its appeal "within 20 days of learning of the determination" is thus not supported by the record and his conclusion that the employer's appeal was timely is erroneous.
Reversed and Remanded to reinstate claimant's benefits.
WARNER, POLEN, and TAYLOR, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624340/ | 15 So. 3d 941 (2009)
Rodolfo G. ORTIZ, Petitioner,
v.
The FLORIDA PAROLE COMMISSION, Respondent.
No. 3D08-2484.
District Court of Appeal of Florida, Third District.
August 12, 2009.
*942 Rodolfo G. Ortiz, in proper person.
Sarah Rumph, Acting General Counsel, and Anthony Andrews, Assistant General Counsel, Florida Parole Commission, for respondent.
Before COPE, SHEPHERD, and SUAREZ, JJ.
COPE, J.
The question before us is whether the Florida Parole Commission[1] had the authority to impose a curfew as a condition of conditional release, where the underlying crimes were committed in 1990. We conclude that the answer is yes.
Rodolfo G. Ortiz entered a guilty plea to the offense of robbery in Miami-Dade County Circuit Court case number 90-6933, as well as robbery, kidnapping, and other charges in Miami-Dade County Circuit Court case number 90-13954 (collectively "the 1990 cases"). The crime dates were February and January, 1990, respectively. Defendant-petitioner Ortiz was sentenced to nine years of incarceration. Subsequently he was released on conditional release. See § 947.1405, Fla. Stat. (1989).
In 1996, the defendant committed a new crime in Miami-Dade County case number 96-41769.[2] He was found guilty at a jury trial and was sentenced to incarceration. His conditional release was revoked.
The defendant states that in 2008, he was placed on conditional release for all three cases. One of the conditions was "a mandatory curfew where you shall be confined to your residence during the hours from 7:00 p.m. to 7:00 a.m., except for work, treatment needs, and religious and educational activities as verified and approved by your conditional release supervisor."
The defendant filed a petition for writ of prohibition in the circuit court, contending that the Parole Commission did not have the authority to impose a curfew on him. The trial court denied relief in Miami-Dade County Circuit Court case number 90-6933, and the defendant has appealed.[3]
We first address a procedural issue. We agree with the Parole Commission that a petition for a writ of prohibition is an incorrect remedy. The defendant is complaining about an action which has already taken place: the inclusion of a curfew as a condition of his conditional release. Prohibition "cannot be used to revoke an order already entered." State ex rel. Sarasota County v. Boyer, 360 So. 2d 388, 392 (Fla.1978).
*943 The Parole Commission explains that judicial review of Commission action is usually accomplished through a petition for writ of mandamus or habeas corpus. "[R]eview of the Commission's orders remains available by petitions for habeas corpus or mandamus filed in the circuit court." Richardson v. Fla. Parole Comm'n, 924 So. 2d 908, 910 (Fla. 1st DCA 2006). The Commission acknowledges that such a petition can be utilized to challenge a condition imposed by the Commission. We therefore disagree with the order entered below, insofar as it reasoned that the trial court was without jurisdiction to review the legality of a condition imposed as part of a conditional release order.
The defendant filed a notice of appeal. The Florida Supreme Court has explained that in this circumstance, the correct procedure for review in this court is certiorari. Sheley v. Fla. Parole Comm'n, 720 So. 2d 216, 217 (Fla.1998); Grace v. Fla. Parole Comm'n, 985 So. 2d 1213, 1214 (Fla. 1st DCA 2008). We therefore treat the notice of appeal as a petition for writ of certiorari.[4]
Turning to the merits, we reject the defendant's argument on authority of the Grace decision, which explains that the Commission's discretionary authority for imposition of special conditions is found in subsection 947.1405(6), Florida Statutes (1990). Grace, 985 So.2d at 1214-15.
The defendant also argues that the Commission was without authority to place him on conditional release, and maintains that he has completed his sentence. That argument is without merit. The conditional release program was in effect at the time the defendant committed his crimes in 1990. Under section 947.1405, Florida Statutes (1989), release on conditional release is mandatory for inmates who qualify. See Duncan v. Moore, 754 So. 2d 708, 710-11 (Fla.2000).
The defendant relies on Starling v. Florida Parole Comm'n, 959 So. 2d 753 (Fla. 1st DCA 2007), and King v. Florida Parole Comm'n, 898 So. 2d 1100 (Fla. 1st DCA 2005). Those cases are not on point. In those cases the defendants claimed that the Parole Commission imposed the terms of subsection 947.1405(7), Florida Statutes, on defendants who committed their crimes prior to the effective date of subsection 947.1405(7). Neither case involved the question now before us, namely, whether the Commission has discretionary authority to impose special conditions under subsection 947.1405(6), Florida Statutes (1990). The Commission had the authority to enter the order now before us. For the stated reasons, we deny the petition for writ of certiorari on the merits.
Certiorari denied.
NOTES
[1] On the Court's own motion, the court amends the style of the case to reflect that the Florida Parole Commission is the respondent.
[2] According to the Department of Corrections website, the 1996 offenses were possession of cocaine and resisting an officer with violence.
[3] The defendant filed the petition in all three of his circuit court cases. Three denial orders were entered, because each of the defendant's cases was before a different circuit judge. The present appeal involves only the order in No. 90-6933.
[4] By interim order this court initially treated the notice of appeal as a petition for writ of prohibition, but pursuant to Sheley, we now treat the notice of appeal as a petition for writ of certiorari. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624361/ | 15 So. 3d 1105 (2009)
Frank CAVAZZO
v.
GRAY INS. CO., et al.
No. CA 08-1407.
Court of Appeal of Louisiana, Third Circuit.
June 3, 2009.
*1106 Jeffrey Martin Cole, Plauche, Smith & Nieset, Lake Charles, LA, for Defendants Appellants, The Gray Insurance Company, Dunham Price Group, LLC, Dunham Price, LLC, Dunham Price Marine, LLC, Material Handling, LLC.
Rex Douglas Townsley, The Townsley Law Firm, Lake Charles, LA, for Plaintiff Appellee, Frank Cavazzo.
J. Mac Morgan, Attorney at Law, New Orleans, LA, for Plaintiff Appellee, Frank Cavazzo.
Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
SAUNDERS, Judge.
In this is a case, an employee filed a petition for damages against his employers, alleging he was a seaman under the Jones Act and § 905(b). The employers and their insurer responded by filing a motion for summary judgment seeking a judgment that the employee's sole remedy was under the Longshoreman & Harbor Workers' Compensation Act, thus, his claims against them under both the Jones Act and § 905(b) should be dismissed.
The employee then filed his own motion for summary judgment seeking a declaration that he was a Jones Act seaman. The trial court, recognizing that this case was not going to a jury, discovery was complete, and there was no dispute on what job duties the employee performed, determined that the employee was a Jones Act seaman. Accordingly, the employee's partial motion for summary judgment was *1107 granted while the remaining summary judgment requests were denied.
The trial court designated his judgment regarding the employee's status as final and granted the employers and their insurer a devolutive appeal. They raised two assignments of error. We affirm the trial court's judgment that the employee was a Jones Act seaman, and we dismiss all other issues raised as they are not properly before this court.
FACTS AND PROCEDURAL HISTORY:
Plaintiff/Appellee, Frank Cavazzo (Cavazzo) was injured when he attempted to disembark from an empty barge at the Calcasieu River Ship Channel marine facility on Lake Charles. The barge and facility were owned and operated by his employers, Dunham Price Group, LLC; Dunham Price, LLC; Material Handling, LLC; and Dunham Price Marine, LLC. The insurer for these entities is The Gray Insurance Company (the entities and insurer collectively "the appellants.").
Cavazzo filed a petition asserting Jones Act and § 905(b) claims under the Savings to Suitors clause on August 10, 2006, in the Fourteenth Judicial District Court. This case will not be a jury trial. After Cavazzo amended his petition on January 30, 2007, the appellants filed a motion for summary judgment seeking a dismissal of Cavazzo's claims on December 4, 2007. In response, Cavazzo filed a motion for partial summary judgment on February 22, 2008, seeking, among other things, a declaration that he was a Jones Act seaman.
The cross motions for summary judgment were heard on March 24, 2008. During the hearing, all the parties agreed that no facts as to what Cavazzo did on the job were in dispute, thus, as this was not to be a jury trial, the matter was ripe for summary judgment. Evidence of such is the following exchange that took place between the trial court and the lawyer for the appellants:
THE COURT:
Cross motions for summary judgment. Is there really any material factual dispute about what the guy did, how it happened, anything of that sort?
MR COLE:
I don't believewell, what he did, I don't believe there is any factual dispute. I thinkbefore the Court, you have everything that you would need to determine his status, his seaman status, even at the trial on the 21st. I don't think you can hear any more evidence then what you have got before you today on that particular issue. There is some controversy over whether he was really injured the way he says and that kind of thing.
THE COURT:
I understand that. But insofar as the motions for summary judgment are concerned, as I appreciate it, we are really concerned about what his status is. Is he a seaman, or is he under the Longshoremen Harbor Workers' Act?
MR COLE:
Right. There is two aspects to is, Your Honor; and you can rule by summary judgment on either or both of them. The plaintiff alleges that he is a Jones[] Act seaman; and then there is an alternative 905(B) claim. But I think that all of the evidence that you need to determine if he has got either of those claims is before the Court today.
After hearing the arguments and taking the matter under advisement, on August 1, 2008, the trial court granted the portion of Cavazzo's motion for summary judgment declaring him a Jones Act seaman. Further, the trial court denied all other motions made by the parties for summary judgment. The trial court signed a judgment *1108 in accordance with La.Code Civ.P. art. 1915(B) designating the order granting Cavazzo's motion for partial summary judgment a final judgment, and granting the appellants' devolutive appeal that is now before this court. In that appeal, the appellants have raised the following two assignments of error:
ASSIGNMENTS OF ERROR:
1. The Trial Court erroneously granted partial summary judgment to [Cavazzo] holding that [he] is a Jones Act seaman and entitled to bring his claims for damages under the Jones Act, and erroneously concluding that [Cavazzo] is not a longshoreman whose claims for damages are limited to benefits under the Longshoreman and Harbor Workers' Compensation Act.
2. The Trial Court erroneously denied [the appellants'] Motion for Summary Judgment seeking dismissal of [Cavazzo's] lawsuit claiming damages under the Jones Act, and alternatively, under § 905(b).
ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO:
In their first assignment of error, the appellants assert that the trial court erroneously granted partial summary judgment to Cavazzo, holding that he is a Jones Act seaman and entitled to bring his claims for damages under the Jones Act, and erroneously concluded that Cavazzo is not a longshoreman whose claims for damages are limited to benefits under the Longshoreman and Harbor Workers' Compensation Act. In their second assignment of error, the appellants claim that the trial court erroneously denied their motion for summary judgment seeking dismissal of Cavazzo's lawsuit claiming damages under the Jones Act, and alternatively, under § 905(b). We find no merit in the appellants' assertion that the trial court erred in finding that Cavazzo is a Jones Act seaman, and find that the remaining issues that the appellants raised are not before this court.
Appellant courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Stated differently, this court "asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appellant is entitled to a judgment as a matter of law."
Lovejoy v. Bergeaux, 03-862, p. 3 (La.App. 3 Cir. 12/10/03), 862 So. 2d 490, 492, writ denied, 04-13 (La.3/19/04), 869 So. 2d 851, cert. denied, 543 U.S. 819, 125 S. Ct. 58, 160 L. Ed. 2d 28 (2004) (citations omitted).
The United States Supreme Court, in Chandris, Inc. v. Latsis, 515 U.S. 347, 368, 115 S. Ct. 2172, 2190, 132 L. Ed. 2d 314 (1995) (citations omitted), stated the following:
[W]e think that the essential requirements for seaman status are twofold. First ... "an employee's duties must `contribute to the function of the vessel or to the accomplishment of its mission.'" The Jones Act's protections, like the other admiralty protections for seamen, only extend to those maritime employees who do the ship's work. But this threshold requirement is very broad: "All who work at sea in the service of a ship" are eligible for seaman status.
Second, and most important for our purposes here, a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.
*1109 In the case before us, the following is an excerpt of the deposition of Mr. David Godsey, a representative of one of the appellants, Dunham Price Group, LLC:
Q What is the function of one of those M deck barges as far as you know? If you had to tell me what's the purpose, what's it do, what's its function
A The load that we put on it.
Q Did the work that Mr. Cavazzo do when he was working on one of those barges, did it contribute or further that function, contribute to the accomplishment of the function?
A Yeah.
Q And the same thing on the boat. What is the purpose of the function of these two tugboats, the "Brandy Jo" and the "Mr. Cass"?
A When used to flip the barges around, was to exactly that, extract it from the slip, turn it around and put it back in the slip.
Q And when Mr. Cavazzo would be working on the boat, his work would contribute to the accomplishment of its function?
A Yeah, if he hooked the boat up to the barge and unhooked it, yes, sir.
This testimony from one of the appellants clearly establishes that the first requisite of the Chandris test is met. Cavazzo "contribute[d] to the function of the vessel or to the accomplishment of its mission." Chandris, Inc., 515 U.S. at 368, 115 S. Ct. 2172.
With regard to the second part of the Chandris test, we must determine whether Cavazzo was connected to a vessel or fleet of vessels that were in navigation. If so, we must then determine whether Cavazzo's connection was substantial in both its duration and its nature.
It is clear to this court, and the appellants apparently concede, as they put forth no argument otherwise, that Cavazzo was connected to a fleet of vessels. The bareboat chartered deck barges and the two tugboats, the Brandy Jo and the Mr. Cass, were under the control of Cavazzo's employer, Material Handling. Therefore, they constituted an identifiable fleet of vessels that Cavazzo worked with daily.
The appellants did argue in brief that the fleet of vessels were not in navigation. They cite Cook v. Belden Concrete Products, Inc., 472 F.2d 999 (5th Cir.1973) to support this argument. They contend that the barges Cavazzo loads and unloads are made simply to store cargo and, thus, not vessels in navigation under the jurisdiction of the Jones Act. We find this argument unconvincing.
In Cook, our United States Fifth Circuit Court of Appeals, citing The Robert W. Parsons, 191 U.S. 17, 30, 24 S. Ct. 8, 12, 48 L. Ed. 73 (1903), stated that the "determinative factors upon the question of jurisdiction [are] the purpose for which the craft was constructed and the business in which it is engaged." Cook, 472 F.2d at 1001. However, the Cook court went on to state:
Conventional ships and barges as well as such unconventional craft as submersible drilling barges and floating dredges which are designed for navigation and commerce are vessels within general maritime and Jones Act jurisdiction and retain such status even while moored, dry-docked, or otherwise immobilized and secured to land.
Id. (emphasis added).
In this case, the fleet that Cavazzo was connected to consisted of barges and two tugboats. Barges are constructed to store and transport cargo. The two tugboats were used to help load and, on at least four occasions, transport that cargo. The business *1110 that the fleet of vessels were engaged in involves delivery of that cargo to a destination that is reached by the sea. As such, it is clear to this court that the fleet that Cavazzo contributed to the function of were vessels under the Jones Act.
Next, we must determine whether Cavazzo's connection to the fleet was "substantial in terms of both its duration and its nature." Chandris, Inc., 515 U.S. at 368, 115 S. Ct. 2172. Regarding the duration of the work and its connection to the fleet, Cavazzo testified that he spent seventy percent of his time at work loading barges, while the remaining thirty percent of his time he was doing maintenance. The following is the pertinent testimony of Cavazzo:
Q So 70 percent of the time you are loading barges, 30 percent of the time you are either unloading at the button house or you are doing some maintenance?
A Correct.
....
Q Now, in the 70 percent of the time that you are loading the barge, how much of that time do you spend on the barge as opposed to one the wharf or somewhere else on the facility? I mean, you talked about checking the load and pumping water out and hooking up onto the cables when you flipped the barge. All of those things happened when you are loading, right?
A Correct.
This testimony was not refuted by the appellants, and no records of the amount of time an employee spent on land as opposed to on a vessel were kept. As such, there is only one reasonable view of this evidence, that Cavazzo worked approximately seventy percent of the time on vessels under the jurisdiction of the Jones Act. We find that such an amount of time working is substantial. See Danos v. McDermott, Inc., 563 So. 2d 968 (La.App. 1 Cir.1990).
Finally, after having established that Cavazzo's connection to the fleet was substantial in its duration, we must decide whether Cavazzo's connection to the fleet was substantial in its nature. We find that the nature of the connection was substantial.
Cavazzo's work consisted primarily of loading barges, while secondarily he would unload barges or perform maintenance on either a barge or one of the tugboats. In loading the barges, he had to "flip" the barges around, i.e. turn the barge around once it was loaded to its middle. This was done so that he could load the other side of the barge. When flipping a barge, it was required that Cavazzo and the crew of workers would use of one of the two tugboats. In this process, Cavazzo would unhook the barge, ride in the tugboat to turn the barge around then handle the lines on the barge and handle the face wires on the tugboat while the barges were floating and being moved on the Calcasieu River Ship Channel. According to Cavazzo's undisputed testimony, this would happen almost daily, some days more than once. On such days a "six-pack" of empty barges would arrive at the harbor, and the loading of all six would involve flipping each of the six. The flipping process took two hours per barge, and it usually took two to three days for a "six-pack" of barges to arrive empty and leave fully loaded. This testimony correlates with Cavazzo's testimony that he loaded barges about seventy percent of the time.
Further, Cavazzo checked the engines on the tugboats to make sure they had the correct level and quality of oil and cleaned the tugboats. Finally, Cavazzo, on four different occasions, served as a tugboat deckhand on trips from Lake Charles to *1111 Beaumont to unload the barges the tugboats were transporting.
We find that all of these duties are clearly seaman's duties. See Scheuring v. Traylor Bros., Inc., 476 F.3d 781 (9th Cir. 2007) and Delange v. Dutra Constr. Co. Inc., 183 F.3d 916 (9th Cir.1999). As such, we find that Cavazzo meets every aspect of the second prong of the Chandris test. He has "a connection to ... an identifiable group of such vessels[] that is substantial in terms of both its duration and its nature." Chandris, Inc., 515 U.S. at 368, 115 S. Ct. 2172.
In their second part of this assignment of error, the appellants claim that the trial court erroneously concluded that Cavazzo is not a longshoreman whose claims for damages are limited to benefits under the Longshoreman and Harbor Workers' Compensation Act. Finally, in their second assignment of error, the appellants claim that the trial court erroneously denied their motion for summary judgment seeking dismissal of Cavazzo's lawsuit claiming damages under the Jones Act, and alternatively, under § 905(b). We find that none of these issues are properly before this court.
Louisiana Code of Civil Procedure Article 1915(B) (emphasis added) states:
(1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.
In Granger v. Guillory, 00-363 (La.App. 3 Cir. 4/26/00), 762 So. 2d 640, this court dismissed an appeal taken pursuant to certification of a partial judgment denying a party's motion for summary judgment. "While certification is allowed upon Article 1915 of partial judgments which grant a motion for summary judgment, this statute does not authorize the certification of a judgment denying a motion for summary judgment." Id., at 641 (emphasis added).
All other issues raised by the appellants stem from the denial of their motion for summary judgment. As is clear by the language of Article 1915(B) and by established jurisprudence, these issues are not yet appealable and, thus, not properly before us. Accordingly, we dismiss these issues raised by the appellants.
CONCLUSION:
The appellants raised two assignments of error. We affirm the trial court's grant of partial summary judgment in favor of Frank Cavazzo and dismiss the remainder of the issues raised by the appellants. We assess all costs of this appeal to the appellants: Dunham Price Group, LLC; Dunham Price, LLC; Material Handling, LLC; and Dunham Price Marine, LLC; and The Gray Insurance Company.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624412/ | 522 So. 2d 705 (1988)
Ferdinand P. CURTIS,
v.
HIBERNIA NATIONAL BANK in JEFFERSON PARISH.
No. 87-CA-543.
Court of Appeal of Louisiana, Fifth Circuit.
March 14, 1988.
*706 Peter S. Thriffiley, Thomas J. Lutkewitte, Favret, Favret, Demarest & Russo, New Orleans, for defendant-appellant.
Edward J. Mozier, Jr., New Orleans, for plaintiff-appellee.
Before BOWES, GRISBAUM and GOTHARD, JJ.
GRISBAUM, Judge.
The principal question presented is whether a depositary of money (Hibernia National Bank, the appellant) in paying on forged items spends its own funds or those of its depositor (the original plaintiff-appellee). It was stipulated by counsel that the bank paid out $4200 in funds on checks that were forged and charged same to the plaintiff's account. The trial court ruled in favor of the plaintiff-depositor. From this decision, Hibernia National Bank appeals. We affirm.
FACTS
The plaintiff's action is against the bank to recover the monies paid out and charged to his account under the forged checks. The record shows the plaintiff, Mr. Ferdinand P. Curtis, testified that he had maintained a checking account in the same bank for about 20 years. At first, he kept very accurate account of the balance; however, as he got older, he estimated the balance in his head, explaining "At the end of the month when my statement came I checked all the checks against the ... bank statements just to verify they were mine." Mr. Curtis had found this approach to be adequate to his needs, there generally being "several thousand dollars in the account."
The record also shows that in 1985, Mr. Curtis had about $1500 of checks that were forged. Mr. Curtis discovered the forgeries after receiving his bank statement and immediately informed the bank. Upon the advice of bank personnel, he opened a new account and closed the old one. He does not recall anyone, at that time, telling him he had been negligent in the manner in which he kept his account. No one advised him to maintain his account any differently.
As to the 1986 forgeries in question, he reports that he first discovered their existence when he got his monthly statement. He then "went to the bank and spoke with one of the ladies in the back on it and we closed the account again and I filled out the necessary forms and notarized them and so forth." He does not recall being phoned by a bank employee about February 19, 1986 and being informed that his account was overdrawn. Mr. Curtis believes the checks were stolen from his desk. However, he had tried to ensure that they were in a safe place.
Upon writing a check, Mr. Curtis reports, he generally wrote the check amount and check number in his checkbook. He did not always carry down the balance, however. Although the testimony is unclear, Mr. Curtis apparently states that the forged checks were taken from a checkbook other than the one he was then writing his own checks from, the numbers of the forged checks being out of sequence with his own. Mr. Curtis repeats that he would rectify his account at the end of each month upon receiving his statement. Curtis admits the drawer in which he kept his checkbook was not locked. On redirect, however, he clarifies that the desk is not equipped with a lock.
First called by the bank, Mary Benn is an assistant manager at Hibernia. She reports *707 that on February 19 she had called Mr. Curtis to inform him that he was overdrawn. Mr. Curtis made a deposit to cover the overdraft and asked if Ms. Benn thought there might be some check forgeries involved. She continues:
A. I told him I didn't know anything about any forgeries. I asked him did he have checks missing and he said that he didn't know, that he didn't keep a record[,] [that] he just kept it in his head. So, I asked him if he would check and let me know and I didn't hear anything, so I assumed everything was okay.
Q. You asked him to check to see if he had any missing checks?
A. That's correct.
Q. He never got back to you?
A. No.
Q. What was the next time you heard from Mister Curtis?
A. When he came in with the forged checks telling me that they were forged.
Q. And, do you recall the date?
A. I don't recall the date. It was right around March twentieth, something like that, maybe twenty-second.
Q. He completed the forgery affidavits at that time?
A. He did.
Q. When did you next hear from Mister Curtis?
A. Okay. After he brought the checks in then he called me on the phone a short time after that. I don't recall the date. He said the gentleman was at his house and he wanted to know if we could work out some kind of a deal for him to make the payment to the bank. And, I told him, at that time, that we couldn't discuss those arrangements with him, that he would have to contact our security department.
Ms. Benn maintains that had Mr. Curtis told her on February 19 that checks were missing, she would have suggested closing "the account immediately to prevent further loss to him or to the bank in any case." She adds that all but two of the forgeries would probably thus have been averted. Curtis did not ask that his account be closed.
On cross-examination, Ms. Benn in effect concedes that, after the prior forgery episode, no one suggested to Mr. Curtis that he was negligently handling his account. She says he did not state that he did not keep track of his checks and the bank did not inquire. When asked when the bank would check a maker's signature, Benn says, "If we had something that we thought might be a forgery, or something, we can have bookkeepers pull that out, providing the customer notifies us[,] and when these items come through they can be checked on a daily basis." She adds, however, that normal procedure in the face of suspected forgery would be to close the account. Ms. Benn concedes that "a lot" of customers probably rely on their statements to keep track of their accounts. On redirect, Ms. Benn says that in this case a "restrain" was placed on Mr. Curtis' account the same date the notification of forgery was received.
Next called by the defendant was Daniel P. Dunn, formerly with the Forgery and Fraud Division of the New Orleans Police Department, now a bank officer working in audit security. He testified that Hibernia does not verify signatures on any check cashed over the teller line unless the item is $20,000 or above. He continues,
It's cost prohibative, due to the amount and the volume of checks coming through the bank....
Q. Based on your experience is that the procedure followed by other banks in the area?
A. I believe there's only one bank left that checksthat verifies signature[s] by check and I think that's Whitney National Bank. I believe nine out of every other ten banks in the country... do not verify them by signature.
On cross-examination, Mr. Dunn reports that if a customer notifies the bank that some of his checks are missing, a hold is placed on the account.
Called in rebuttal, Mr. Curtis does not recall Ms. Benn asking him to ascertain whether any of his checks were missing.
*708 ANALYSIS
Under La.R.S. 10:3-404,
(1) Any unauthorized signature is wholly inoperative as that of the person whose name is signed unless he ratifies it or is precluded from denying it; but it operates as the signature of the unauthorized signer in favor of any person who in good faith pays the instrument or takes it for value.
(2) Any unauthorized signature may be ratified for all purposes of this Chapter. Such ratification does not of itself affect any rights of the person ratifying against the actual signer.
As defined, in turn, by La.R.S. 10:1-201, "`Unauthorized' signature or indorsement means one made without actual, implied or apparent authority and includes a forgery." "No person is liable on an instrument unless his signature appears thereon." La. R.S. 10:3-401.[1] Given these provisions, the general rule of liability on a forged instrument, as derived by W. Hawkland and H. Bailey, III, is as follows:
Since an unauthorized signature is wholly inoperative as that of the person whose name is signed, it follows that a payor bank which pays a forged check may not charge the amount thereof to the drawer's account [UCC 3-404(1)]. In addition, the forged instrument may not be charged against the account as it is not properly payable under UCC 4-401(1). The same principle should apply to a non-bank drawee of a draft bearing the forged signature of the purported drawer. In other words, the drawee or payor bank pays out its own money and not that of the drawer or customer whose signature is forged, since the bank's contract is to pay only on its customer's order. Stated another way, a bank is required to know the signatures of its customers who carry accounts with the bank.
Sum & Substance of Commercial Paper, § 5.2300, p. 192. (Emphases in the original.) The contemporary rule is consistent with that established by the Louisiana jurisprudence in Etting v. Commercial Bank, 7 Rob. 459 (La. 1844), wherein it was held the defendant bank was liable for monies paid out on several forged instruments because "The depositary must take care that he pays none but the checks or drafts of the depositor." Id. at 463. See Allan Ware Pontiac, Inc. v. First Nat'l Bank of Shreveport, 2 So. 2d 76, 79 (La.App. 2d Cir.1941), cert. denied, April 28, 1941, for a recitation of the same rule under the Negotiable Instruments Law.
Having established the general rule, we must necessarily determine whether the depositor's negligence precludes him from invoking it. Under La.R.S. 10:3-406,
Any person who by his negligence substantially contributes to a material alteration of the instrument or to the making of an unauthorized signature is precluded from asserting the alteration or lack of authority against a holder in due course or against a drawee or other payor who pays the instrument in good faith and in accordance with the reasonable commercial standards of the drawee's or payor's business.
As explained by U.C.C. Comment 3 to § 3-406, "No attempt is made to define negligence which will contribute to an alteration. The question is left to the court or the jury upon the circumstances of the particular cases." Accordingly, this constitutes a finding of fact, such an assessment being reviewable under the manifest error standard. See Ortego v. Ortego, 471 So. 2d 1106, 1110 (La.App. 3d Cir.1985).
We also note the trial court, in its Reasons for Judgment, states
The bank has attempted to indicate that the plaintiff was somehow negligent to the extent that it would vitiate their payment, since apparently this had happened a year or so before. Testimony is quite clear that the plaintiff indicated that his account was overdrawn and, at that time, asked whether or not there were any forgeries. The bank did not check any forgeries at that time, but rather asked him to advise if any further checks were *709 missing. He did not contact them again. He states he doesn't remember it and there was a delay in further contacting the bank at that time. The court is of the opinion that that neglect, if it is categorized as such, is not sufficient to vitiate the bank's responsibility in this case. The court is well aware that many accounts, held by individuals, are simply not checked with the preciseness that the bank would like. That the accounts are not reconciled on an ongoing basis and are indeed not even checked when statements come in. But, that is still immaterial to the overriding question. There is no doubt at all, but that the bank policy for economic reasons is such that they do not check signatures and, as such, they are liable for the amount of damages sought in this particular case. The court recognizes their economic reasons for this, but nevertheless unless there is overriding negligence on the part of the plaintiff, which is not present in this case, the bank is liable.
We agree with the trial court's rationale and also recognize that La.R.S. 10:4-406 gives the drawer a reasonable time after receiving his checking statement to notify the bank of any forgeries detected. Accordingly, after a careful review of the record, we find the trial court had a reasonable factual basis for its factual conclusions and its findings and conclusions are not "clearly wrong."
For the reasons assigned, the judgment of the trial court is affirmed. All costs of this appeal are to be assessed against the appellant.
AFFIRMED.
NOTES
[1] See also Colonial Bank v. Marina Seafood Market, Inc., 425 So. 2d 722, 724 (La.1983): "No person may be held liable on a negotiable instrument unless his signature appears thereon." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624417/ | 522 So. 2d 540 (1988)
David JACOBS and Brian Cullen, Appellants,
v.
The STATE of Florida, Appellee.
No. 87-2649.
District Court of Appeal of Florida, Third District.
March 29, 1988.
*541 David Jacobs and Brian Cullen, in pro. per.
Robert A. Butterworth, Atty. Gen., and Margarita Muina Febres, Asst. Atty. Gen., for appellee.
Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
BASKIN, Judge.
Defendants Jacobs and Cullen challenge the trial court's order denying their motions to correct allegedly illegal sentences. We affirm.
The state charged defendants with trafficking in cocaine in excess of 400 grams. Under that charge, defendants were subject to mandatory minimum sentences of fifteen years imprisonment. § 893.135(1) (b)3, Fla. Stat. (1985). As part of a plea bargain with the state, defendants agreed to reduction of the charges and sentences of ten-years imprisonment. Pursuant to negotiations, defendants entered pleas of guilty to reduced charges of trafficking in cocaine in excess of 200 grams, but less than 400 grams, and were each sentenced to serve ten years in prison. The presumptive sentences on the reduced charges are less than the imposed sentences.[1]
Defendants contend that the ten-year sentences they received are illegal because they exceed the recommended guidelines range and the mandatory minimum sentence. We disagree. Defendants clearly benefited from the negotiated reduction of the charges.
Although the trial court imposed sentences greater than the presumptive sentences, it enunciated clear and convincing reasons for enhancing the sentences.[2] The plea agreement constitutes a valid reason for departure. See Holland v. State, 508 So. 2d 5 (Fla. 1987); Rowe v. State, 523 So. 2d 620 (Fla. 2d DCA 1988); Denmark v. State, 519 So. 2d 20 (Fla. 1st DCA 1987); Quarterman v. State, 506 So. 2d 50, 52 (Fla. 2d DCA 1987); see also Grimes v. State, 499 So. 2d 42, 43 (Fla. 1st DCA 1986).
*542 Accordingly, we affirm the sentences under review.
Affirmed.
BASKIN and FERGUSON, JJ., concur.
DANIEL PEARSON, Judge, concurring.
The majority correctly says that a trial court must give a clear and convincing reason for a departure from the sentencing guidelines, and that a plea bargain is such a reason. However, the majority opinion should not be taken to mean that a trial judge must, as is required for sentencing departures that do not result from plea bargains, prepare a written order justifying departures that are the result of negotiated pleas. See Davidson v. State, 506 So. 2d 43 (Fla. 2d DCA 1987) (since sentences were imposed according to plea bargain, it was unnecessary for trial court to review a scoresheet); Houston v. State, 502 So. 2d 977, 979 (Fla. 1st DCA 1987) ("no purpose whatsoever to be served by preparation of a sentencing guidelines scoresheet" when defendant agrees to a specific sentence); Grimes v. State, 499 So. 2d 42, 43 (Fla. 1st DCA 1986) ("a scoresheet seems unnecessary where all parties have agreed on a negotiated sentence"); Lawson v. State, 497 So. 2d 288 (Fla. 1st DCA 1986) (same; certifying question), cause dismissed, 501 So. 2d 1282 (Fla. 1987); Rowe v. State, 496 So. 2d 857, 859 (Fla. 2d DCA 1986).
NOTES
[1] The mandatory minimum sentence for the reduced charge is five years. § 893.135(1)(b)2, Fla. Stat. (1985). Defendant Jacobs' guidelines sentence range is 3 1/2 4 1/2 years; defendant Cullen's sentence range is 5 1/2 7 years. Since the mandatory minimum sentence under the reduced charge exceeds Jacobs' guidelines sentence, the mandatory sentence takes precedence; thus, Jacobs' presumptive sentence is 5 years. Vanoyer v. State, 498 So. 2d 899, 901 (Fla. 1986); Fla.R.Crim.P. 3.701(d)(9). Because Cullen's guideline sentence exceeds the mandatory minimum sentence; Cullen's presumptive sentence is 5 1/2 7 years. Fla.R.Crim.P. 3.701(d)(9).
[2] The trial court must state clear and convincing reasons for departure where the sentence exceeds both the guidelines and the mandatory minimum sentence. See Munroe v. State, 514 So. 2d 397 (Fla. 1st DCA 1987), review denied, 519 So. 2d 987 (Fla. 1988); Hernandez v. State, 501 So. 2d 163 (Fla. 3d DCA 1987); Pedraza v. State, 493 So. 2d 1122, 1123 (Fla. 3d DCA 1986), review denied, 504 So. 2d 768 (Fla. 1987). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624418/ | 43 N.W.2d 543 (1950)
CITY OF BRISTOL
v.
HORTER.
CITY OF BRISTOL
v.
SANDSTROM et al.
Nos. 9105, 9106.
Supreme Court of South Dakota.
July 26, 1950.
*544 Louis H. Smith, Sioux Falls, for appellants.
Bicknell & Holland, Webster, for respondent.
SICKEL, Judge.
Two actions were brought by the City of Bristol, a municipal corporation, plaintiff, for the condemnation of land. In one case Bruno Horter is defendant and in the other the defendants are Swen E. Sandstrom and Carl E. Sandstrom. The issues in both cases are the same, except as to the value of the land owned by different defendants. The actions were consolidated for trial in the circuit court and on appeal.
Plaintiff's petition in each case alleges that the governing body of the city has by resolution declared the necessity for taking private property belonging to defendants for public use as a water storage area in connection with the storm and sanitary sewerage disposal by the city. The petition prays that just compensation be made to the owners for such property. A copy of the resolution declaring the necessity for taking the property was attached to the petition. The answer alleges that the petition fails to state a claim upon which relief can be granted; that the taking of defendant's property is not necessary; ownership of the land in defendant; that the condemnation proceedings are void. The case was tried to a court without a jury and findings of fact, conclusions of law and judgment were entered in favor of the city. Defendant in each case appealed.
Defendant's first contention is that the city failed to prove compliance with the rules of the State Board of Health relating to sewerage, garbage and refuse disposal and that such failure bars judgment of condemnation in this case. The city admits noncompliance with the rules of the State Board of Health but contends such compliance was not necessary.
SDC 27.0104 in effect at the time this case was tried provides that the State Board of Health shall have power to adopt regulations "not inconsistent with the statutes of the state * * * necessary for the preservation and protection of the public health" and particularly to "prohibit and suppress" "(b) The business of scavangering and the disposal of sewerage; * * * (e) The pollution of streams and other waters * * *". On the authority of these statutes the board adopted regulation Number 35 which reads as follows:
"Section 1. No person, company, corporation, private or public institution or municipality, shall install or materially alter or extend, for public use, any system of water supply, water purification, sewerage or sewage, garbage or refuse disposal until complete plans and specifications for such *545 installation, alteration or extension, together with such information as the State Board of Health may require, submitted in duplicate, have been approved by the State Board of Health insofar as their sanitary features are concerned. All works shall be constructed in accordance with the plans as finally approved.
"Section 2. Whenever it shall be determined that there should be any material change in the plans, construction or operation of any such system, a detailed statement of such contemplated change, together with the reasons therefor, shall be submitted in duplicate to the State Board of Health, before such change, or any contract for the making of such change is made, and then such change shall be made only after the approval as to all matters likely to affect the public health, has been given by the State Board of Health.
"No such system or alteration or extension thereof shall be placed in use until after final inspection and approval by the State Board of Health."
The above regulation in substance prohibits municipal corporations from entering into any contract to install, materially alter or extend any public system for sewerage, garbage or refuse disposal until plans and specifications therefor have been approved by the State Board of Health.
SDC 45.0201(13) grants to all municipal corporations the power "To acquire by lease, purchase, gift, condemnation, or other lawful means and hold in its corporate name or use and control as provided by law both real and personal property and easements and rights of way within or without the corporate limits for all purposes authorized by law or necessary to the exercise of any power granted." The establishment of a sewage disposal system by the municipality is authorized by SDC 45.0201 (84, 89).
The manner of exercising the power of condemnation by the municipal corporation is regulated by SDC 45.2712 in the following language: "Except as otherwise specially provided, whenever the governing body of any municipality shall deem it necessary to appropriate or damage any private property, either within or without the corporate limits of the municipality, for any purpose authorized by law, it shall, by a resolution passed by a two-thirds majority of all the members elected thereto, declare such appropriation necessary, stating the purpose and extent of such appropriation. Thereupon the proceedings for such appropriation and condemnation shall be as provided by law and the rules of practice and procedure adopted by the Supreme Court."
The condemnation statute, SDC 37.4001, provides that "In all cases where any resolution, ordinance, or other proceeding of any corporation is required by law before taking private property, a copy of such resolution, ordinance, or proceeding shall be attached to such petition". A municipal corporation is required by statute, SDC 45.2712, supra, to pass a resolution declaring the appropriation of the property to be necessary, and stating the purpose and extent of such appropriation. This is the resolution "required by law" to which reference is made in SDC 37.4001, supra, and a copy of which must be attached to the petition for condemnation.
The statutes nowhere require a resolution or other proceeding by the State Board of Health, nor the submission and approval of plans and specifications by the board as a prerequisite to the execution of a contract by the city for the installation or extension of a sewerage disposal system or to the condemnation of real property by the municipality for that purpose. The Board of Health was given the power to adopt such regulations as are reasonably necessary "for the preservation and protection of the public health," SDC 27.0104. To this end it may regulate the disposal of sewerage and "the pollution of streams and other waters" by a municipality. The board may establish standards for the accomplishment of these objectives and require the submission of plans and specifications in order that it may determine the fact of compliance. Such power is administrative and may be properly conferred upon the *546 board. However, the Board of Health is without the power to add to the statutory requirements for condemnation of real property by municipalities. Such power is legislative. Cavanagh v. Coleman, 72 S.D. 274, 33 N.W.2d 282; Casualty Reciprocal Exchange v. Sutfin, 196 Okl. 567, 166 P.2d 434; 16 C.J.S., Constitutional Law, § 138 (19). We therefore conclude that the submission of plans and specifications for the proposed sewerage disposal system was not a condition precedent to the entry of the decree of condemnation in this case.
Appellant also contends that there was no necessity for the taking of defendants' property. "* * * The question of the existence of the necessity for exercising the right of eminent domain, where it is first shown that the use is public, is not open to judicial investigation and determination, but that the body having power to exercise the right of eminent domain is also invested with power to determine the existence of the necessity; * * *." Chicago, M. & St. P. R. Co. v. Mason, 23 S.D. 564, 122 N.W. 601, 603; 29 C.J.S., Eminent Domain, § 89b. In this case the purpose was public and the necessity was determined by the legally authorized municipal authority. It is not contended that the city is appropriating more land than is necessary for the use intended, and there is no claim of fraud, bad faith or abuse of discretion. Therefore the city's determination that the necessity for the taking exists is conclusive.
Appellant also contends that the court erred in refusing to allow the defendants to recover for damages to property not taken. Article VI, § 13 of the state constitution provides that "Private property shall not be taken for public use, or damaged, without just compensation * * *." Article XVII, § 18 of the state constitution provides: "Municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed, * * *." This court has stated the rule to be that "* * * A party whose land is taken under condemnation proceeding is entitled to recover, not only for the value of the land actually taken, but for the damage the remaining land sustains by reason of such taking, and that the true measure of damages in such case is the difference between the value of the farm or tract of land before the portion is taken and its value after the same is taken." Chicago, M. & St. P. Ry. Co. v. Brink, 16 S.D. 644, 94 N.W. 422, 424; Schuler v. Board of Supervisors, 12 S.D. 460, 81 N.W. 890.
This case was tried without a jury, and the court made the following finding of fact Number VIII which reads: "As to said lands the Court finds that the same contains 11.1 acres of plow land worth $50.00 per acre; 1.2 acres of grass, slough hay, brush, and pasture lands worth $35.00 an acre; and 16.6 acres of slough bottom lands covered with water worth the sum of $25.00 per acre, the whole value of the lands taken being found by the court to be the sum of $1,012.00."
The court also made the following conclusion of law: "That the defendant is not entitled to recover damages in addition to the sum last above mentioned, from the plaintiff."
The acreage and corresponding value shown in finding number VIII, quoted above, total exactly $1,012.00 which is the amount of damages allowed to the defendants. This leaves nothing for damages to the property not taken. It also appears that the court made no finding as to whether land not taken was damaged. Neither did the court find the damages to be the difference between the value of the farms before the taking and their value after the taking which, as this court said in the Brink and Schuler cases, is the true measure of damages.
Appellants proceeded at the trial on the theory that the measure of damages in a condemnation case "is the value of the land taken and all consequent damage to the remainder." They called as a witness F. J. Studer, a Sioux Falls real estate and insurance man, and asked for his opinion as to what would be the damages to the Sandstrom and Horter farms as a result of the discharge of the effluent from the proposed sewerage disposal plant into the sloughs. Objections to these questions were made by *547 the respondent on the ground that no foundation had been laid for the evidence, that the witness was not properly qualified to answer, and that the questions did not embrace the established facts in the case. These objections were sustained by the court and the ruling is assigned as error. The measure of damages would be the difference in value of the farms before and after the taking, and there is nothing in the record to suggest that Studer was qualified to give an opinion of the value of land in the vicinity of Bristol. The objections to this and other similar questions were therefore properly sustained by the court.
Appellants also asked their witness Morehouse for his opinion as to the reasonable market value of each farm after the taking of the specific acreage, and the flowing of refuse from the sewerage disposal plant into the sloughs. Objection to this form of question was also sustained. This witness had previously testified as to the value of the entire farm before the taking and as to the value of the areas to be taken by the city in each instance. It also appears that this witness was qualified to give his opinion as to the value of the farms after the taking. The city is here condemning property as necessary for the disposition of effluent from a disposal system which it proposes to construct. It is fair to assume that this effluent will be something different than ordinary surface drainage. The circumstances surrounding the proposed disposition of effluent may be considered by the court in this case, or by a jury, in fixing the value of the farms after the taking even though the circumstances "in no other view could be ground for damages." Schuler v. Board of Supervisors, 12 S.D. 460, 81 N.W. 890, 892. This witness and others similarly questioned were entitled to take into consideration the proposed discharge of effluent from the disposal plant into the sloughs in giving their opinions as to the value of the farms after the taking.
The judgment of the circuit court is reversed with directions to retry the issue of damages. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624434/ | 603 S.W.2d 365 (1980)
Linda SHERRILL, et vir, Appellants,
v.
Dr. Charles McBRIDE, Appellee.
No. A2296.
Court of Civil Appeals of Texas, Houston (14th Dist.).
July 30, 1980.
James H. Shoemake, Shoemake, Urmy & Luquette, Houston, for appellants.
John T. Golden, Vinson & Elkins, Houston, for appellee.
Before BROWN, C. J., and PAUL PRESSLER and JUNELL, JJ.
JUNELL, Justice.
This appeal from a take-nothing judgment in a medical malpractice suit contends that the jury's responses to the determinative issues were against the great weight and preponderance of the evidence. We will affirm.
*366 Appellant Linda Sherrill, having had a malignant melanoma on her right foot excised, requested her Tulsa, Oklahoma, surgeon to obtain an opinion regarding post-operative treatment from the M. D. Anderson Hospital and Tumor Institute of the University of Texas at Houston. Appellee, Dr. Charles McBride of the hospital's department of surgery, responded to the Tulsa surgeon's inquiry in a letter stating that the preferred treatment at M. D. Anderson was an iliac dissection and perfusion. In the same letter he offered to make arrangements to perform the surgery.
An iliac dissection and perfusion is a chemotherapeutical prophylaxis. The patient's limb is isolated from the rest of the body; circulation is provided by use of a heart-lung apparatus; catheters are inserted into the major artery and vein going into the extremity, an incision having been made in the groin; a tourniquet is placed over the catheters to prevent the drug which will be introduced through the catheters from entering the rest of the body; and the leg is completely wrapped in order to raise its temperature significantly during the operation. At the conclusion of the treatment the drug is completely washed out of the leg, circulation is restored to the rest of the body and the leg is undraped. Testimony during the trial indicated that at the end of ten years 72% of patients receiving the chemotherapy were disease free as compared to 45% among those who did not avail themselves of it. Thus, it appears that a patient who undergoes the treatment decreases his or her chances of a recurrence by approximately 60%.
In the therapeutic operation on Mrs. Sherrill, performed by Dr. McBride and his surgical team on January 11, 1974, a large amount of phenylalanine mustard was introduced into the limb by the method described above. Early in the operation it was determined that a catheter had kinked. The tourniquet was removed, and the catheter was replaced. When Mrs. Sherrill's leg was undraped at the conclusion of the operation it was discovered that she had suffered a large hematoma or bruise on the back of her thigh. This hematoma subsequently became infected and, despite constant treatment, ultimately resulted in the disarticulation or amputation of her leg at the hip. This suit followed.
In reply to special issues the jury found that (1) there was no failure to obtain an informed consent from the appellant; (2) Dr. McBride did not fail to use ordinary care in performing the perfusion surgery; and (3) that Mrs. Sherrill suffered no monetary damages occasioned by the amputation of her leg. These are the jury responses that appellants, Mrs. Sherrill and her husband, Kenneth, here urge are contrary to the great weight and preponderance of the evidence.
Where the sufficiency of the evidence to support a verdict is challenged, we must consider all of the evidence, including both the evidence in support of the verdict and that which is contrary thereto. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1952).
Appellee admits that he did not inform his patient of the risk of losing her leg. Basic to a suit alleging failure to make reasonable medical disclosure is the offering of proof by expert medical testimony of what a reasonable physician of the same school in the same or a similar community would have disclosed to a patient in the same or similar circumstances, causation and damages. Wilson v. Scott, 412 S.W.2d 299, 302 (Tex.Sup.1967); Perdue, the Law of Texas Medical Malpractice 195 (1975).
During the course of the trial Dr. Ralph Roan, a general surgeon practicing in San Francisco, California, who is not an oncologist, i.e., a specialist in the field of tumors, testified on behalf of appellants. He had never performed an iliac dissection and perfusion, albeit he was familiar with the technique and had assisted in operations, such as heart surgery and kidney transplants, where the perfusion technique was used.
Testifying for the appellee were Dr. McBride, who had performed some 500 perfusions and was the author of seven or *367 eight articles on the technique used; Dr. Edward T. Krementz, Professor of Surgery at Tulane University, who in cooperation with two other oncologists had originated the perfusion operation involved in Mrs. Sherrill's therapy, had performed over a thousand perfusions, in excess of 850 of which involved melanoma or extremity lesion, and was a prolific writer on the subject; and Dr. Robert C. Hickey, the Director of the M. D. Anderson Hospital, a surgical oncologist who had performed surgical perfusion. The last testified that appellee McBride was the "most knowledgeable person in perfusion in this country."
None of these medical experts testified as to the incidence of loss of limb to the number of operations performed in the country or even in the community. Dr. Krementz testified that in his own experience in the early years of the operation he had had 3 patients lose limbs after the operation, but that, except for a partial amputation at about mid-calf caused by poor circulation, none of his patients had lost a leg since 1963. Dr. McBride testified that except for Mrs. Sherrill none of his patients had lost a leg in the 500 operations he had performed. Dr. Roan offered no statistics as to the incidence of amputation but testified that loss of limb was mentioned as a hazard in medical literature.
According to the testimony adduced, therefore, the risk of loss of limb was remote, in fact a bare possibility. Under these circumstances we are of the opinion that the jury's findings that Dr. McBride did not deviate from the standard of informed consent practiced in the community in 1974 has adequate support in the record. Ross v. Sher, 483 S.W.2d 297 (Tex.Civ.App.-Houston [14th Dist.] 1972, writ ref'd n. r. e.).
Additionally, the jury as the judge of credibility was free to disregard Dr. Roan's testimony that "the warnings to the patient should include the known potential risks and complications of the operation" and that "literature that I have reviewed... includes the mention of limb loss, amputation." Southwestern Bell Tel. Co. v. Griffith, 575 S.W.2d 92 (Tex.Civ.App.-Corpus Christi 1978, writ ref'd n. r. e.). Appellants' point of error complaining of the jury's finding of no lack of informed consent is overruled.
Appellants contend in their second point of error that the jury's finding of no failure by appellee to use ordinary care is against the great weight and preponderance of the evidence. Here appellants had the burden to persuade the jury by a preponderance of expert testimony that the disarticulation of Mrs. Sherrill's leg was caused by Dr. McBride's lack of skill or attention. Hart v. Van Zandt, 399 S.W.2d 791 (Tex.Sup.1965); Hood v. Phillips, 554 S.W.2d 160 (Tex.Sup.1977). This they have failed to do.
Dr. Roan was the medical expert relied upon to prove negligence. He testified that there was a myriad of possibilities, but that there were only three probabilities as to what caused the hemorrhage that resulted in Mrs. Sherrill's loss. These probabilities were (1) that in replacement of the kinked catheter the vein may have been punctured; (2) that, in re-wrapping, the tourniquet may have been applied too tightly and ruptured some blood vessels; and (3) that the catheter may not have been directed into the major blood vessel supplying the entire leg but into the major vessel which supplies the thigh. However, there was no evidence showing or even tending to show that any one of the above so-called "probabilities" actually occurred, and hence there was no showing that Dr. McBride was negligent with respect to any of them. There was substantial medical testimony controverting each of them. The jury was justified in returning a negative answer to the issue. Appellants' second point of error is overruled.
Appellants urge their third point of error, dealing with the jury's failure to find Mrs. Sherrill suffered any monetary damages occasioned by the loss of her limb, only if either of their other points of error is sustained. It is well established in Texas that erroneous failure to find damages is *368 harmless error where negligence of the defendant has been negated. Southern Pine Lumber Co. v. Andrade, 124 S.W.2d 334 (Tex.Com.App.1939, opinion adopted); Tex. R.Civ.P. 434. Thus, we do not rule on this point of error.
Judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624442/ | 603 S.W.2d 938 (1980)
George Franklin MORRIS, Appellant,
v.
STATE of Missouri, Respondent.
No. 61763.
Supreme Court of Missouri, En Banc.
September 9, 1980.
*939 Gary L. Robbins, Public Defender, Malcolm H. Montgomery, Sp. Asst. Public Defender, Jackson, for appellant.
John Ashcroft, Atty. Gen., Bruce E. Anderson, Asst. Atty. Gen., Jefferson City, for respondent.
MORGAN, Judge.
Appellant sought relief from his conviction for first degree robbery in a Rule 27.26 motion in which he claimed ineffective assistance of counsel on appeal. Specifically, appellant alleged that his counsel did not timely perfect the appeal. Counsel took no steps to further the appeal after filing a notice of appeal and jurisdictional statement. The trial court found that appellant was not entitled to an evidentiary hearing or relief under the rule, citing Gerberding v. State, 433 S.W.2d 820 (Mo.1968) and State v. Schaffer, 383 S.W.2d 698 (Mo.1964).
The Court of Appeals, Southern District, affirmed the judgment of the trial court, holding that as per Hemphill v. State, 566 S.W.2d 200 (Mo. banc 1978), a Rule 27.26 proceeding cannot be used to consider the issue of ineffective assistance of appellate counsel and alleged defects in proceedings before the appellate courts. This Court granted transfer and will consider the issue as if on original appeal. Mo.Const. art. V, § 10.
The divisional opinions of this Court in Gerberding and Schaffer were reaffirmed in Hemphill. The facts in the latter case, however, differ from those in the instant case in a significant way and lead us to the conclusion that Hemphill, although relying on those earlier cases,[1] was particularly appropriate *940 for a case of the kind before it then, but should not be applied to all claims of ineffective assistance of counsel on appeal.
Among the several points raised in Hemphill's § Rule 27.26 motion was a charge of ineffective assistance of appellate counsel due to his retained counsel's failure to brief many of the errors alleged in the motion for new trial. This Court held at 566 S.W.2d 208 that:
[r]elief from defects in proceedings before the appellate courts are beyond the scope of the remedy (27.26) and such relief should be sought only in the appellate court of rendition and there by a motion to recall the mandate, vacate the sentence of affirmance and redocket the cause for rehearing.
The Court further reasoned:
Here the efficacy of the conviction is challenged not for matters occurring in the trial process but for the acts or omissions of counsel in the appellate process and their contaminating effect on that appeal. The appellate court, rendering the final judgment in the appeal, is in the best position to rule and determine such issues. It is there the briefs are presented, argument heard and the effect of the conduct of appellate counsel as it bears on the issue of "ineffective assistance" may best be determined.
Id. at 208.
In the case before us now, appellant's counsel first failed to file a timely notice of appeal. After the appeal was dismissed, the Southern District granted appellant's request for leave to file a late notice of appeal. A second notice of appeal was filed with a jurisdictional statement attached. No further steps to perfect the appeal were taken thereafter, and the Southern District, after notice to appellant and his counsel, dismissed the second appeal. After this dismissal appellant filed a Rule 27.26 motion seeking relief on the basis of ineffective assistance of appellate counsel.
The language of Hemphill, as quoted supra, leads us to conclude that the holding of evidentiary hearings by appellate courts as part of a challenge to the effectiveness of appellate counsel was not intended or envisioned therein. In Hemphill the unique vantage of the appellate court was stressed because the issues presented there were ones that could be resolved by that court by reason of its supervisory role in the briefing process and its first-hand knowledge of oral arguments. No such special vantage resides in the appellate court in this case. In fact, the only matter before the appellate court in this case is the notice of appeal and jurisdictional statement, whose sufficiency is not challenged. It is obvious that the issues in Hemphill were subject to relatively simple resolution without an evidentiary hearing. The issue in the instant case is not so well-defined or easily resolved. For example, a question central to appellant's 27.26 claim remains unanswered on the face of the motion: whether appellant's counsel abandoned appellant on appeal or whether appellant indicated he did not wish to pursue the appeal?[2] The filing of a *941 motion to recall the mandate, as approved in Hemphill, could evolve from a simple process of reviewing the record on appeal, the briefs and the oral arguments to a lengthy procedure which could include an evidentiary hearing requiring the presence of a defendant, his past and current counsel, the prosecutor and others. Such an extension would exceed the intended scope of Hemphill.[3]
In cases where an appellate court retains no unique knowledge necessary to the disposition of a claim of ineffective assistance of appellate counsel or where an evidentiary hearing may be deemed necessary to the disposition, a Rule 27.26 motion is the appropriate vehicle for seeking post-conviction relief. Cf. State v. Gates, 466 S.W.2d 681 (Mo.1971) and State v. Jones, 446 S.W.2d 796 (Mo.1969). The procedure set out in Hemphill should continue to be followed only in cases whose facts would so justify.
This conclusion is in keeping with State v. Frey, 441 S.W.2d 11 (Mo.1969). In that case, defense counsel failed to file a timely notice of appeal after the defendant was convicted and sentenced on a charge of robbery in the first degree. The defendant filed a Rule 27.26 motion to set aside the sentence and judgment. Finding that the evidence established that defendant had desired an appeal and had requested his attorney to appeal the conviction, the trial court sustained defendant's motion and ordered him discharged. The state appealed. This Court concluded that the trial court had jurisdiction to hear and determine the motion under Rule 27.26 to vacate the sentence but erred in ordering the discharge of the defendant. In so holding the Court quoted Williams v. United States, 402 F.2d 548 (8th Cir. 1968):
[T]he objective of granting a defendant an appellate review of which he has been unconstitutionally deprived is generally accomplished by means of vacating the sentence and remanding the case to the trial court for resentencing, the time for appeal then commencing to run from the date of the resentence.
Id. at 552.
The record in this 27.26 proceeding is insufficient to justify the same disposition here. Accordingly, we reverse and remand to the trial court for appointment of counsel, determination of the need for an evidentiary hearing to resolve whether or not appellant did waive his right to appeal and other appropriate relief.
All concur.
NOTES
[1] In Gerberding the defendant's Rule 27.26 motion was denied without an evidentiary hearing. On appeal the Court determined that he was entitled to a hearing on other issues but added that the claim that his original appeal was neither briefed nor argued by his counsel could not be reached by a motion under Rule 27.26. Schaffer was cited as precedent for this conclusion.
In Schaffer the defendant's final contention in his appeal of the denial of his Rule 27.26 motion was that the court erred in failing to set aside the judgment because he was not represented by counsel upon his appeal. (Schaffer preceded cases which determined that an indigent defendant is entitled to the effective assistance of counsel on appeal as well as at trial.) The Court said in Schaffer, 383 S.W.2d at 700:
While the trial court, under Rule 27.26, may set aside a trial court judgment of conviction (for constitutional infirmities which occurred in that court) in a case which has been theretofore appealed to and affirmed by the supreme court, it could not set aside the judgment of the supreme court because of omissions or infirmities relating solely to the validity of the proceedings in that court.
The rationale of that case has no application to the instant case. If an appellant were entitled to relief under a claim like the one here, there would be no judgment of affirmance by the supreme court (or other appellate court) to be set aside. In fact, the merits of the case would never have been reached because no appeal occurred; it would have been dismissed for failure to timely perfect.
[2] Appellant included the following in his Rule 27.26 motion:
It is to the best of movant's knowledge and belief that his attorney received a notice from the Missouri Court of Appeals-Springfield District that movant's appeals would be dismissed if he didn't comply with Missouri Supreme Court requirements of Rule 28.03 and 81.04 and movant's appeal was dismissed for this failure, and movant thought in good faith that his appeal was perfected in said court of appeals and movant was waiting the court's opinion in the matter until he wrote the Clerk of Court of Appeals and learned that his appeal was dismissed. Movant contends there was no waiver in this case because the relinquishment of those rights as movant has pointed out herein was not a "knowing" one.
[3] We find the circumstances of this case more closely akin to those in Nicholson v. State, 524 S.W.2d 106 (Mo. banc 1975) and the cases cited therein than those in Hemphill. In Nicholson, the defendant's court-appointed attorney requested and was granted leave to file a motion for new trial after the maximum time allotted by the rules. Thereafter, that counsel was allowed to withdraw from the case without having filed the motion but before the expiration of the period specifically permitted by the court. New counsel was not appointed until after the time had expired to file a motion for new trial. As to the proper disposition under those facts the Court said:
We have consistently held, however, that the appropriate remedy in cases where the right to an appeal has been unconstitutionally abridged, is to vacate the sentence and order the case remanded with directions to permit the appellant to file a motion for new trial. [citations omitted] [emphasis added]
Id. at 111.
No claim is made in the instant case that the motion for new trial was deficient in any way; so the exact solution of Nicholson would be inappropriate here. It is clear, however, that appellant's claim in the instant case is more like the failure to file a motion for new trial than the failure to adequately brief and argue a case, as in Hemphill. That makes the procedure set out in Frey more fitting than that in Hemphill in cases such as these. The line to be drawn as to what court is better suited to review post-conviction claims should be determined by factors of substance and not by arbitrary labels such as trial vs. appeal errors. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624439/ | 522 So. 2d 3 (1987)
Junior Lee McKISSICK
v.
STATE
4 Div. 824.
Court of Criminal Appeals of Alabama.
November 24, 1987.
Rehearing Denied December 29, 1988.
Certiorari Denied April 1, 1988.
Charles D. Decker, of Hardwick, Hause, Segrest & Northcutt, Dothan, for appellant.
Don Siegelman, Atty. Gen., and C. Dean Monroe III, Asst. Atty. Gen., for appellee.
Alabama Supreme Court 87-424.
PATTERSON, Judge.
Appellant Junior Lee McKissick was found guilty, by a jury, of the charge that he "did sell, furnish or give away Marijuana, a controlled substance, contrary to law, in violation of § 20-2-70 of the Code of Alabama". As a result of this conviction,[1] appellant was sentenced, as a habitual offender, to 20 years' imprisonment.
The prosecution's evidence established the following. On February 2, 1986, at approximately 2:00 a.m., Officer Jesse Seroyer, while working undercover, approached several males who were standing outside Newsome's Drive-In and asked where he could purchase some marijuana. Appellant replied that he knew someone who was doing business. Seroyer said, "Let's go see what we can do." Then, appellant walked to an automobile parked nearby. One of the two males in the car, the occupant of the driver's seat, gave appellant a plastic bag that contained plant material later determined to be marijuana. Appellant, in turn, gave the bag to Seroyer, and Seroyer handed $10.00 to the driver. During this transaction, Seroyer observed several more bags and more money in the car. As Seroyer was leaving, appellant said that Seroyer should give him something for setting up the deal. Seroyer gave appellant a dollar and left.
As his sole issue, appellant argues that, upon the recited evidence, the trial court should have granted his motion for a directed verdict of acquittal. He relies on Hill v. State, 348 So. 2d 848 (Ala.Cr.App. 1977), cert. denied, 348 So. 2d 857 (Ala. 1977), for his contention that a defendant who has acted without interest in or benefit from an alleged sale cannot be convicted as *4 a seller, even though his conduct may have facilitated the sale, where the evidence shows no conspiracy or pre-arrangment between the defendant and the seller. Appellant contends that he was merely a "procuring agent" for the buyer and, thus, not guilty as an accomplice of the seller.
This argument overlooks one fact: the indictment was not limited to the act of selling, but broadly included the act of furnishing marijuana.
"`Furnish' is not defined in the Alabama Uniform Controlled Substances Act. Section 20-2-2.
"As used in the Controlled Substances Act, `furnishes' means to provide or supply and connotes a transfer of possession. State v. Robinson, 108 Ariz. 596, 503 P.2d 817, 819 (1972); Baker v. Superior Court of Los Angeles County, 24 Cal. App. 3d 124, 100 Cal. Rptr. 771, 772 (1972); Miller v. State, 281 P.2d 441, 445 (Okl.Cr.App.1955). The ordinary meaning of `furnish' is to provide or supply. 17A Words and Phrases, `Furnish' (1958).
"The meaning of furnish as used in the Controlled Substances Act is clear...."
Walker v. State, 428 So. 2d 139, 141 (Ala. Cr.App.1982). See also 28 C.J.S. Drugs and Narcotics § 164 (Supp.1974) ("`To furnish' means to supply by any means, by sale or otherwise, and a sale need not be shown").
"Under a statutory provision denouncing the offense of furnishing narcotic drugs, it is immaterial that the defendant furnished the narcotic or dangerous drug in the role of an agent between the purchaser and the supplier or the seller and the buyer." 28 C.J.S., supra, at § 165. The court in Hill, the case upon which appellant relies, recognizes the difference in result between those cases in which the defendant was charged with a "sale" in the ordinary sense of the word and those in which the accused was charged with some other action, such as "delivering," "distributing," or "furnishing." 348 So.2d at 853-55. In the latter type of prosecution, the issue of agency is irrelevant and the "procuring agent" defense is precluded. State v. Sharp, 104 Idaho 691, 662 P.2d 1135 (1983); Harwood v. State, 543 P.2d 761 (Okla.Cr.App.1975); Tipton v. State, 528 P.2d 1115 (Okla.Cr. App.1974).
Thus, in this case, it makes no difference if appellant was merely acting as an agent for the buyer.[2] The issue was, simply, whether he transferred possession. At the moment appellant received the marijuana from the driver of the vehicle, he had the control and power to do with it as he wished. The record shows that he chose to hand it immediately to the buyer. Even in brief, appellant's counsel admits, "At the very most the record only indicates that the Defendant introduced a willing buyer and seller and aided only in the physical transfer of the drug." (Brief, p. 7) Thus, we find that the trial court's denial of appellant's motion for directed verdict was correct.
Accordingly, this cause is affirmed.
AFFIRMED.
All Judges concur.
NOTES
[1] The jury verdict reads that it found appellant "guilty of selling marijuana as charged in the indictment." When this indictment is read in the context of the oral charge to the jury and the two possible verdicts submitted for consideration, both of which evoked no objection from defense counsel, it is clear that the jury found appellant guilty of selling, furnishing or giving away, not merely selling.
[2] In basing our affirmance on this rationale, we do not mean to imply that the prosecution's evidence was insufficient to support the holding that appellant aided and abetted in the sale. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624395/ | 522 So. 2d 525 (1988)
Michael A. SPAZIANO, Appellant,
v.
STATE of Florida, Appellee.
No. 86-1230.
District Court of Appeal of Florida, Second District.
March 25, 1988.
James Marion Moorman, Public Defender, and John T. Kilcrease, Jr., Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Lee Rosenthal, Asst. Atty. Gen., West Palm Beach, for appellee.
DANAHY, Chief Judge.
The appellant, Michael Spaziano, is before this court for a second time after a jury found him guilty of first degree murder. His first appeal, raising the issues of nonexistent portions of the record precluding effective appellate representation and insufficient evidence to find premeditation, was affirmed. Spaziano v. State, 464 So. 2d 564 (Fla. 2d DCA 1984). Thereafter, the appellant filed a motion seeking postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 alleging ineffectiveness of both trial and appellate counsel.[1] Specifically, Spaziano contends that his privately-retained trial counsel, Michael Sweeting, unreasonably (1) failed to object to incomplete and misleading jury instructions on excusable homicide and manslaughter; (2) failed to object to the omission of a jury instruction on justifiable homicide; (3) failed to rebut evidence of premeditation; and (4) failed to develop the *526 defenses of excusable and justifiable homicide. An evidentiary hearing was held and the trial court denied the motion. We agree with the appellant in his first contention relating to the jury instruction. Because this is dispositive, it is unnecessary to address his remaining arguments.
While, as in most criminal cases, the evidence was conflicting, we briefly summarize the following evidence to show the context of the erroneous jury instructions. The charges against Spaziano stemmed from his shooting of the victim, Mark Cohn, which occurred after a series of physical threats and incidents of harassment directed toward Spaziano and his family by Cohn because Cohn blamed Spaziano for a rift between Cohn and Cohn's father. Cohn, who usually carried a gun either on his person or in his car, was known to have been under the influence of both mood-altering and illegal drugs on the day of the shooting. Spaziano testified that his state of mind was extremely fearful because of the recent history of threats and harassment, and especially because of the threatening behavior of Cohn towards him that day of the shooting when Cohn finally faced Spaziano on a public street. He also claimed that the shooting was accidental and unintentional; he testified that he did not know the gun was loaded and that it went off when Cohn lunged toward him as they confronted each other on the street.
Based upon the evidence at trial and the defense's theory of excusable homicide, it was incumbent upon the trial court to give a full and accurate jury instruction on excusable homicide. Blitch v. State, 427 So. 2d 785 (Fla. 2d DCA 1983). Furthermore, when a manslaughter instruction is given, it is necessary that the complete definition of justifiable and excusable homicide be included as part of the manslaughter instruction. Alejo v. State, 483 So. 2d 117 (Fla. 2d DCA 1986). Neither instruction was given correctly by the trial court. Instead, the court gave the following instructions to the jury:
(Excusable homicide)
The killing of a human being is excusable, and therefore lawful, when committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent, or by accident or misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, without any dangerous weapon being used and not done in a cruel or unusual manner.
... .
(Manslaughter)
Before you can find the defendant guilty of Manslaughter, the State must prove the following two elements beyond a reasonable doubt:
1. Mark Cohn is dead.
2. The death was caused by the act, procurement or culpable negligence of MICHAEL SPAZIANO.
I will now define "culpable negligence" for you. Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care for others. For negligence to be called culpable negligence, it must be gross and flagrant. The negligence must be committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.
Trial counsel failed to object to these instructions at the charge conference and also at trial when they were read to the jury. This court has found that this same abbreviated jury instruction language defining excusable homicide constituted reversible error in Blitch where there was a similar contention and supporting evidence that the shooting was accidental and the state of mind of the defendant was in issue. The additional error of not giving a complete instruction on manslaughter has been recently held by this court to be fundamental error in the case of Alejo. In Alejo we *527 noted that "[c]ourts have consistently held that an instruction defining justifiable and excusable homicide is necessary to provide a complete instruction on the crime of manslaughter." 483 So.2d at 118. Trial counsel's failure thus was an unreasonable omission which severely prejudiced his client's case inasmuch as the error complained of negated the only defense put forth by trial counsel. See Carter v. State, 469 So. 2d 194 (Fla. 2d DCA 1985). We are satisfied that both prongs of the Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), test were fulfilled in this case. Notwithstanding the fact that Spaziano's appellate counsel could have and should have brought this to our attention on direct appeal, for which error he can be labeled ineffective too, these errors should have been corrected at the rule 3.850 hearing. Blitch and Alejo were argued to the court at the evidentiary hearing and the court committed reversible error by not following them and granting the requested relief.
We reverse the denial of the appellant's motion for postconviction relief and remand the case to the trial court with instructions to grant his rule 3.850 motion for a new trial.
Reversed and remanded.
LEHAN, J., and BOARDMAN, EDWARD F., (Ret.) J., concur.
NOTES
[1] We recognize that the proper procedure for alleging ineffective appellate counsel is petition for a writ of habeas corpus but, since the ineffective trial counsel issue is inextricably wound up with the ineffective appellate counsel issue, we choose to disregard this procedural irregularity. State v. Stacey, 482 So. 2d 1350 (Fla. 1985). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624392/ | 522 So. 2d 766 (1988)
Forrester L. DURBIN
v.
B.W. CAPPS & SON, INC.
86-1584.
Supreme Court of Alabama.
March 11, 1988.
Ted Taylor and Leah O. Taylor, Prattville, for appellant.
J. Pelham Ferrell of Ferrell, McKoon & Britton, Phenix City, and John V. Denson of Samford, Denson, Horsley, Pettey, Martin & Barrett, Opelika, for appellee.
HOUSTON, Justice.
Forrester L. Durbin appeals from a summary judgment in favor of defendant, B.W. Capps & Son, Inc., which was made final pursuant to Rule 54(b), Ala.R.Civ.P. We affirm.
Durbin was injured when his vehicle ran into the rear of a farm tractor pulling a mowing machine (referred to in the record by the brand name "Bush Hog") on a public highway in Russell County, Alabama. Defendant Rev. Elbrey W. Herring was operating the tractor, which was owned by defendant B.W. Capps & Son, Inc. The corporate defendant's liability was predicated solely on the doctrine of respondeat superior. The corporate defendant denied that the individual defendant was its agent, servant, or employee. The corporate defendant filed a motion for summary judgment based on the pleadings; the depositions of Durbin, George W. Capps, Myrtice Etheridge, and the individual defendant; and the affidavit of Capps. Durbin filed a motion in opposition to the motion for summary judgment, which was based on the pleadings and the depositions of Capps and the individual defendant. Both parties filed excellent briefs in support of, and in opposition to, the motions. The summary judgment was granted.
Did the trial court err in granting the corporate defendant's summary judgment? To answer this question, we must determine whether there is a scintilla of evidence that the individual defendant was an agent of the corporate defendant and, if so, whether there is a scintilla of evidence that he was acting within the line and scope of his authority at the time the accident occurred. In doing so, we must view the direct evidence and all reasonable inferences that can be drawn from the circumstantial evidence in a light most favorable to Durbin.
The corporate defendant owned the tractor. The individual defendant was operating it at the time of the accident. This creates an "administrative presumption" of agency, but this "administrative presumption" is not in itself evidence. Rogers v. Hughes, 252 Ala. 72, 75, 39 So. 2d 578, 579 (1949); Tullis v. Blue, 216 Ala. 577, 114 So. 185 (1927). In Tullis v. Blue, Justice Somerville wrote for a division of the Court:
*767 "It is well settled that those presumptions do arise from proof of the defendant's ownership of the vehicle; but it is well settled also that they are prima facie presumptions merely, or, as they are sometimes called, administrative presumptions, based upon considerations of fairness and convenience in placing the burden of proof. They are not in themselves evidence, and in practice their effect is merely to impose upon the defendant the burden of showing that the driver was not his agent, or that, if he was, he was not acting within the scope of his authority or in the course of his employment. If the evidence thereon is in conflict, or leads to doubtful inference only, the issue should go to the jury. If, however, the evidence, without dispute, rebuts the facts thus presumed, there is no issue for the jury, and the general affirmative charge should be given for the defendant on request. Dowdell v. Beasley, 205 Ala. 130, 87 So. 18; s. c., 207 Ala. 709, 91 So. 921; Massey v. Pentecost, 206 Ala. 411, 90 So. [866] 868; Aetna Explosives Co. v. Schaeffer, 209 Ala. 77, 95 So. 351; Ford v. Hankins, 209 Ala. 202, 96 So. 349; Rooks v. Swift & Co., 210 Ala. 364, 98 So. 16; Freeman v. Southern, etc., Ins. Co., 210 Ala. 459, 98 So. 461." (Emphasis supplied.)
216 Ala. at 578, 114 So. at 187.
In Craft v. Koonce, 237 Ala. 552, 554, 187 So. 730, 731 (1939), the Court wrote:
"When plaintiff proves such ownership of the [vehicle] by defendant, and thereby brings into being the presumption [that the driver was his agent], he need not offer further proof that the operator of the [vehicle] was the agent of defendant, and [was acting] in the line and scope of his authority, until and unless defendant has offered proof that he was not acting for defendant in the line and scope of his authority. And if defendant makes that proof and it is not contradicted, either expressly or inferentially, defendant is entitled to the affirmative charge. But if there is any evidence which reflects upon the credibility of that evidence by defendant on that question, or from which an inference may be drawn to a different result, whether such evidence was produced by defendant or plaintiff, the question of whether the operator of the [vehicle] was defendant's agent acting in the line and scope of his authority should be submitted to the jury."
This was quoted with approval in Cordes v. Wooten, 476 So. 2d 89, 91 (Ala.1985).
In Craft and Cordes this Court was faced with the trial court's giving of an "affirmative charge" or its failing to give a directed verdict. In the case at issue we are involved with the granting of a summary judgment to a defendant. Our standard of review is the same. A summary judgment "functions as a gatekeeper to avert needless trials"; and it is in effect nothing more or less than an accelerated directed verdict in a pretrial context. "Subject to the provisions of Rule 56(f) and Rule 56(e) [Ala.R.Civ.P.], sentence 4, clause 1, a court may enter summary judgment for a defendant whenever the same state of proofs would justify a directed verdict for him at trial," J. Hoffman & W. Schroeder, Burdens of Proof, 38 Ala.L.Rev. 31, 37 (1986); Aetna Casualty & Surety Co. v. Beggs, [Ms. 86-1035, February 19, 1988] (Ala.1988).
The corporate defendant offered direct evidence that the individual defendant was not an agent, servant, or employee of the corporate defendant and was, therefore, not acting in the "line and scope" of his authority or employment at the time of the accident. The individual defendant was the full-time pastor of Shiloh Baptist Church. Undisputed evidence indicated that he had never been an employee of, or been paid wages by, the corporate defendant. The individual defendant, at some time within a period of 18 months preceding the accident, had done contract painting for the corporate defendant. This had taken one or two days and had been completed before the date of the accident. On the date of the accident, the individual defendant had borrowed the tractor for a purpose that had not been disclosed to the corporate defendant. The individual defendant had *768 borrowed this tractor or a similar tractor on two previous occasions for the purpose of cutting grass around Shiloh Baptist Church. The only evidence before the court was that the individual defendant used the tractor to cut approximately two acres of grass around Shiloh Baptist Church in preparation for a revival. He had completed this, and, in his deposition, he testified:
"I was going to return the tractor to the shed attached to the cotton gin. As I topped the hill, the slight rise is right there by the store, and I saw that the grass in front of Mr. [George Wesley] Capps's gate had not been cut by the county. Since I had plenty of light left to do it, I was going to make one pass in front of his gate and return to the shed where my car was."
After the individual defendant passed the shed where he was to leave the tractor, but before he reached the county right-of-way in front of Capps's home, where he was going to cut grass, Durbin drove into the rear of the mower that was being pulled by the tractor. There was no evidence that the corporate defendant was to receive any benefit from what the record indicates was the individual defendant's spontaneous, gratuitous gesture; therefore, it is not necessary for us to decide whether any potential benefit would have provided a scintilla of evidence of agency, if it had been received by the corporate defendant.
Durbin claims that a scintilla of evidence of agency was created by the corporate defendant's ownership of the tractor, the individual defendant's permissive use on this occasion and his prior permissive use of the tractor, the individual defendant's alleged prior employment by the corporate defendant, and possible mutual benefits. We disagree.
The ownership of the tractor: Once agency and, therefore, line and scope of authority are rebutted, the "administrative presumption" itself no longer makes agency or line and scope of authority fact questions. Tullis v. Blue, supra.
Permissive use: One who merely lends a vehicle is not liable to one who is injured by its negligent use in the hands of the borrower. Beville v. Taylor, 202 Ala. 305, 80 So. 370 (1918). The individual defendant had permission to use the tractor. The corporate defendant clearly rebutted the "administrative presumption" of agency. The mere fact that the operator had the owner's permission to use the tractor does not make the operator the owner's agent so as to impose liability on the owner under the doctrine of respondeat superior. There is no allegation or proof of negligent entrustment, as there was in Thompson v. Havard, 285 Ala. 718, 235 So. 2d 853 (1970), and Perdue v. Mitchell, 373 So. 2d 650 (Ala. 1979). We do not interpret Pitts v. Hulsey, 344 So. 2d 175 (Ala.Civ.App.1977), as standing for the proposition that evidence of permissive use alone is sufficient to warrant the submission of the agency issue to the jury. In that case the trial court had instructed the jury that the mere fact that it was established that a wife had used her husband's vehicle with the husband's consent meant that the wife was the husband's agent as a matter of law. The Court of Civil Appeals reversed and held that agency was a jury question under the facts of that case, which are materially different from the facts in the present case.
Prior employment: The undisputed evidence is that the individual defendant had never been employed by or paid wages by the corporate defendant. We can not reasonably infer that because the individual defendant had done contract painting for the corporate defendant for a one- or two-day period that had terminated prior to the date of the accident, that he was driving a tractor as an agent of the corporate defendant and was acting in the line and scope of his authority at the time of the accident.
Possible mutual benefit: There is no evidence that the corporate defendant received any benefit or was to receive a potential benefit as a result of the individual defendant's action in driving its tractor.
Durbin contends that the evidence at least inferentially brings "into suspicion and doubt that the tractor was being operated for the benefit" of the corporate defendant *769 at the time of the accident. From a review of all of the evidence before the trial court when summary judgment was granted, we cannot agree.
"Evidence, however, which affords nothing more than mere speculation, conjecture, or guess is insufficient to warrant the submission of a case to the jury."
Sprayberry v. First National Bank, 465 So. 2d 1111, 1114 (Ala.1984).
It would require that we disbelieve the unimpeached and undisputed direct testimony of Rev. Herring and Capps to create even "suspicion and doubt." This we refuse to do.
Although Durbin suggests in his brief that his discovery was incomplete at the time the trial court ruled on the motion for summary judgment, there is nothing in the record to indicate that Durbin filed a Rule 56(f), Ala.R.Civ.P., motion to delay action on the motion until additional discovery could be completed. From the record before us, it appears that Durbin was ready for the trial court to rule on the corporate defendant's motion for summary judgment.
We are persuaded, considering the evidence in the light most favorable to Durbin, that there was not so much as a scintilla of evidence (either directly from the evidence or reasonably to be inferred from it) to indicate that the individual defendant was an agent of the corporate defendant acting within the line and scope of his authority at the time of the accident.
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON, and BEATTY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624454/ | 15 So. 3d 581 (2009)
SYKES
v.
STATE.
No. SC09-629.
Supreme Court of Florida.
July 22, 2009.
Decision without published opinion Review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624466/ | 522 So. 2d 1168 (1988)
STATE of Louisiana
v.
Stanley F. COVINGTON.
No. K 9040.
Court of Appeal of Louisiana, Fourth Circuit.
March 10, 1988.
*1169 Stanley F. Covington, in pro. per.
Harry F. Connick, Dist. Atty., New Orleans, for respondent.
Before GULOTTA, C.J., and SCHOTT and BYRNES, JJ.
SCHOTT, Judge.
We granted certiorari on relator's pro se application in order to review a judgment of the trial court denying his application for post-conviction relief. The issue is whether a defendant seeking post-conviction relief is entitled to have his sentence vacated when he was sentenced under the Louisiana Habitual Offender Law, R.S. 15:529.1 and the trial court did not fully advise him of his rights to remain silent and to require the State to prove his identity as an habitual offender.
Relator pled guilty to possession of phencyclidine, a violation of R.S. 40:966. On the same day, in another case relator pled guilty to possession of marijuana, a violation of R.S. 40:966. The trial court sentenced the relator to serve six years at hard labor in the phencyclidine case and six months in Orleans Parish Prison in the marijuana case, the sentences to be served concurrently. Subsequently, in the phencyclidine case, relator admitted the allegations in a bill of information charging him as a second offender under the Louisiana Habitual Offender Law. The trial court vacated the earlier setence and imposed a sentence of six years at hard labor. At the multiple bill hearing, relator's counsel informed the court that an agreement had been reached between relator's prior attorney, the district attorney and the court that if relator pled guilty to the multiple bill that he would receive no more than a six year sentence.
Relator now comes before this court challenging the correctness of the trial court's ruling denying his application for post-conviction relief. He claims the trial court failed to inform him of his rights as required by R.S. 15:529.1(D) before accepting his guilty plea to the habitual offender bill of information.
R.S. 15:529.1(D) provides that the trial court shall inform the defendant of the allegations contained in the multiple bill of information and to his "right to be tried as to the truth thereof according to law" prior to asking the defendant whether the allegations of the multiple bill are true. Furthermore, if a defendant pleads guilty to the multiple bill or "if he acknowledges or confesses in open court ... that he has been so convicted", the trial court must first duly caution him as to his rights.
In State v. Martin, 427 So. 2d 1182 (La.1983), the court found that before a plea of guilty to a multiple bill can be said to be made knowingly and voluntarily, the colloquy between the trial judge and the defendant must show that the defendant was advised of his right to a formal hearing on the multiple bill and his right to require the State to prove the issue of his identity as a multiple offender. In State v. Johnson, 432 So. 2d 815 (La.1983), the court held that R.S. 15:529.1(D) implicitly provides that the defendant should be advised by the Court of his statutory right to remain silent before the judge accepts his plea of guilty to the multiple bill. The *1170 court found that the right against self-incrimination does not depend on the nature of the proceedings and held that the defendant, after pleading not guilty, was no longer required to speak and, without being advised of his right to remain silent, his acknowledgement or confession of his prior felony conviction was invalid. Johnson was compelled to testify over his counsel's objection. This not only destroyed the purpose of the statute's requirement that he be "duly cautioned of his rights" before admitting his status as a repeat offender but it also constituted a clear violation of his constitutional right against self incrimination. Johnson is significant because it recognized that the right to remain silent is one of the rights which the trial judge must inform a defendant of under R.S. 15:529.1(D) before accepting a guilty plea to a multiple bill. The merits of the Johnson case, however, addressed the constitutional issue of compelling a defendant to actually give testimony rather then the statutory issue of what rights a defendant must be informed of prior to a guilty plea. In State v. Vincent, 439 So. 2d 1124 (La.App. 4th Cir.1983), this court held that the defense counsel's assurances that he had advised the defendant of his rights did not satisfy sufficiently the requirements of R.S. 15:529.1(D) that the court must personally advise the defendant of his rights. It is important to note that the rights set forth in R.S. 15:529.1(D), as interpreted by Martin and Vincent, are statutory rights and are not founded in the United States Constitution or the Louisiana Constitution.
The defendant is before this Court on an application for post-conviction relief. C.Cr.P. art. 930.3 provides the grounds upon which such relief may be granted. The first ground, "the conviction was obtained in violation of the Constitution of the United States or the State of Louisiana", is the broadest ground and the basis for most post-conviction relief claims. However, when a defendant contends that he was not informed of his rights prior to an admission of identity or a plea of guilty to a multiple bill, no constitutional rights are implicated. These rights are provided by statute and because a multiple bill hearing is not a trial of a substantive offense, a guilty plea to a multiple bill is not the equivalent of a guilty plea to a criminal offense where a defendant must be read his Boykin rights.
Therefore, when a defendant petitions this court seeking post-conviction relief claiming he was not informed of his rights prior to the court's acceptance of an admission of identity or a plea of guilty to a multiple bill, this court will review the multiple bill proceedings to determine if the proceedings were fundamentally fair and provided due process of law. If the court finds that the proceedings were fundamentally fair, even though the trial court did not specifically delineate the rights as required by R.S. 15:529.1(D), this court will uphold the multiple bill sentence because the defendant has failed to show that his conviction and sentence on the multiple bill were unconstitutionally obtained. If, however, a review of the transcript of the proceedings indicates that the defendant was denied due process of law, then this court will grant relief finding that the defendant's conviction and sentence as an habitual offender were obtained in violation of the United States Constitution and the Louisiana Constitution. (i.e., a claim rising to constitutional proportions.)[1]
This opinion should not be construed as providing unbridled discretion to the trial courts during habitual offender proceedings. Rather, trial courts should advise a defendant, before the defendant's admission of his identity as an habitual offender or a plea of guilty to the multiple bill, that the defendant is entitled to a formal hearing on the multiple bill where the State has the burden of proving the defendant's identity as an habitual offender. Furthermore, before accepting an admission or a plea of guilty, the trial court must also inform the defendant that he has *1171 a right to remain silent at this hearing and cannot be forced to testify against himself.[2]
Applying the standards set forth above to the present matter, the defendant's claim that he was not advised of his rights prior to the court's accepting his admission to the allegations of the multiple bill has no merit. A review of the transcript of the multiple bill hearing reveals that the defendant entered into a plea bargain agreement with the State and the trial court whereby he would be sentenced to six years if he pled guilty to the multiple bill. The transcript also reveals that the defendant was asked by the trial judge if he was aware that he would not be eligible for "good time" when sentenced as a multiple offender. The defendant indicated that he knew and understood this consequence of his plea. The defendant received this sentence. Underlying the defendant's claim must be the defendant's belief that he has suffered some injury from the trial court's failure to advise him of his rights. The defendant does not contend, however, that he would have pled not guilty to the multiple bill had the trial court informed him of his rights. The defendant's decision to plead guilty to the multiple bill was a knowing, voluntary decision. The record does not reveal that the defendant was denied due process of law or that these proceedings were fundamentally unfair. Accordingly, the judgment of the trial court denying relator's application for post-conviction relief is affirmed.
AFFIRMED.
NOTES
[1] This Court is aware that this decision is in conflict, either expressly or implicitly, with several decisions rendered previously by this Court. To the extent this decision is in conflict, those decisions are overruled.
[2] See State v. Lloyd Desmond, 524 So. 2d 147 (La.App. 4th Cir.1988), wherein this Court vacated the defendant's sentence as an habitual offender because the trial court failed to inform the defendant of these rights before accepting his plea of guilty to the multiple bill. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624457/ | 332 F. Supp. 790 (1971)
Lincoln Roy BUCKLEY and Everlast Saw & Carbide Tools, Inc., Plaintiffs,
v.
Thomas C. GIBNEY, Deputy District Director, Immigration and Naturalization Service, Defendant.
No. 71 Civ. 470.
United States District Court, S. D. New York.
March 22, 1971.
*791 *792 Jacobs, Jacobs & Giulini, Brooklyn, N. Y., for plaintiffs.
Whitney North Seymour, Jr., U. S. Atty., for United States; Stanley H. Wallenstein, Asst. U. S. Atty., of counsel.
WYATT, District Judge.
This is a motion (heard on February 16, 1971) by Lincoln Roy Buckley and by Everlast Saw and Carbide Tools, Inc. (Everlast) for a preliminary injunction to stay the defendant Thomas Gibney, Deputy District Director of the Immigration and Naturalization Service (Service), from enforcing a warrant of deportation issued against Buckley on January 18, 1971. In response, an Assistant United States Attorney, representing Deputy District Director Gibney, filed an affidavit contesting Buckley's claims and requesting that the complaint be dismissed. The administrative file has also been submitted.
There is substantial agreement concerning the events out of which this action arose.
Buckley came to the United States as a visitor for pleasure (8 U.S.C. § 1101 (a) (15) (B); 8 CFR § 214.2(b)), entering the country on September 16, 1967. Soon thereafter, he accepted his present job in New York City. This was a violation of a condition for his entry into this country and made Buckley deportable under 8 U.S.C. § 1251(a) (9). His visa for a pleasure visit authorized Buckley to remain in the United States until October 15, 1967. He applied for an extension, evidently by deceiving the Service, and secured an extension until February 28, 1968.
In early 1968, Buckley applied for and received a certification from the Secretary of Labor under 8 U.S.C. § 1182(a) (14). This certification was that there were not sufficient workers in the United States who were able, etc. to do the type of work that Buckley was capable of performing and that Buckley's employment would not adversely affect the wages or working conditions of those workers already in the United States. This certification satisfied one of the conditions for Buckley to receive a visa. 8 U.S.C. § 1182(a).
On April 12, 1968, Everlast, Buckley's employer, filed a petition on Buckley's behalf for a visa under 8 U.S.C. § 1153 (a) (6) "skilled or unskilled labor" in the words of the statute and sometimes called a "sixth preference visa". This petition was approved by the Service on February 5, 1969. This approval meant that Buckley could receive a sixth preference visa when and if one became available for that class. It is extremely unlikely, however, that any visa will be available in the foreseeable future to citizens of British Honduras in the sixth preference class. The statutes permit two hundred immigration visas to be issued to citizens of British Honduras each year. 8 U.S.C. § 1152(a), (c). According to the affidavit of an Assistant United States Attorney, these two hundred visas are all taken up by those in the first preference class; thus, there is little reason to expect that Buckley, with a sixth preference, will ever be able *793 to get a visa. It was doubtless for this reason that Buckley remained in the United States, despite the fact that his visitor's visa was no longer valid.
On June 9, 1970, the Service initiated deportation proceedings against Buckley by issuing an order to show cause. It was averred (properly it seems) that Buckley was in the country in violation of law and could be deported under 8 U.S.C. § 1251(a) (2). A hearing was held before a Special Inquiry Officer of the Service on June 16, 1970. At that time Buckley, who was then represented by counsel, admitted that he was deportable. He was granted voluntary departure (8 U.S.C. § 1254(e)) on the condition that if he did not leave the country on or before July 16, 1970 he would be deported. Buckley waived his right to appeal and the order became final. 8 CFR § 242.20.
Before the July 16 date, Buckley submitted motion papers requesting an extension of time for voluntary departure, a stay of deportation, and a reopening of the deportation proceedings. The basis for these requests was that he should be granted a status adjustment under 8 U.S.C. § 1255. The cited section permits the Attorney General to adjust the status of certain aliens "to that of an alien lawfully admitted for permanent residence."
As to that part of the motion requesting that the proceedings be reopened, there was a referral to a Special Inquiry Officer. On July 17, 1970, he denied the motion on the ground that Buckley was "statutorily ineligible for adjustment of status by reason of the unavailability of" immigration visas to those other than those with first preference. Buckley appealed this decision to the Board of Immigration Appeals which affirmed the order on December 11, 1970.
Meanwhile, that part of the motion requesting an extension of time for voluntary departure and for a stay of deportation had been denied by an Assistant Deputy District Director for Deportation on July 7, 1970. He also noted that Buckley was not eligible for status adjustment under 8 U.S.C. § 1255.
On January 18, 1971, the Deputy District Director issued a warrant for Buckley's deportation. On January 20, 1971, the Service notified Buckley that he was to report for deportation on February 2, 1971.
By motion filed on January 28 and directed to the District Director and Special Inquiry Officer, Buckley requested reinstatement of voluntary departure, a stay of deportation, and a reopening of the deportation proceeding, with permission to argue orally before the Board of Immigration Appeals if his motion were denied. On January 29, 1971, the Deputy District Director denied the motion as to a request for voluntary departure and for a stay. The application to reopen the proceedings was directed to the Board as was at that point required by 8 CFR § 3.2. On February 5, 1971, the Board filed an order denying this application.
On February 1, 1971, Buckley filed a petition for review in the Court of Appeals, Second Circuit (Docket No. 71-1104). This automatically stayed his deportation. 8 U.S.C. § 1105a(a) (3). On February 4, 1971, he stipulated to withdraw this petition with prejudice.
On the day his petition to the Court of Appeals was withdrawn, Buckley commenced this action and obtained from Judge Bryan an order to show cause with a temporary restraining order, staying his deportation.
Buckley asserts numerous grounds for a preliminary injunction. He claims that he is being deprived of due process and equal protection in that the Service often stays deportation and grants voluntary departure to holders of approved third preference petitions but refused to grant it to him. (He holds an approved sixth preference petition.) He contends that these same constitutionally protected rights were also violated in that, as a native of a dependent area (British Honduras is a British dependency), he was subject to different quota *794 requirements than he would have been had he been a citizen of an independent country. According to Buckley's complaint, these same requirements also violate the Civil Rights Act. Buckley next contends that deportation is cruel and unusual punishment and therefore is in violation of the Eighth Amendment. Finally, he has a meaningless complaint about execution of an order "while a motion and subsequent appeal was pending".
Buckley's employer, Everlast, also requests a preliminary injunction, apparently on the ground that to deport Buckley would be an interference with its employment contract with Buckley.
The claims of these movants are without merit. The motion will be denied.
Movants assert jurisdiction under several statutes. 8 U.S.C. § 1329 confers jurisdiction of "all causes, civil and criminal, arising under any of the provisions of this subchapter" on the United States District Courts. There is jurisdiction under that statute. Cheng Fan Kwok v. Immigration and Naturalization Service, 392 U.S. 206, 88 S. Ct. 1970, 20 L. Ed. 2d 1037 (1968).
Buckley's first claim is based on his belief that it was improper for the Service to deny his application for a stay of deportation and voluntary departure when, he asserts, it is the practice to grant these requests to beneficiaries of approved third preference petitions. The Service admits that it is the normal practice to grant "voluntary departure for an indefinite period until an immigrant visa is available" [Operation Instruction 242.10(b) (1)] to any alien (with a few exceptions not relevant here) "who is the beneficiary of an approved third-preference petition" [Operation Instruction 242.10(a) (6) (i)] or who is "the beneficiary of an approved sixth-preference petition who satisfies Travel Control * * * that he can qualify for third preference and who cannot obtain a visa solely because a visa number is unavailable". [Operation Instruction 242.10(a) (6) (iii)]. Authority to promulgate these Operation Instructions was delegated to the Commissioner of Immigration and Naturalization by the Attorney General pursuant to 8 CFR § 2.1.
Clearly Buckley can claim no rights under Operation Instruction 242.10(a) (6) (i); he does not hold an approved third preference petition. He likewise can claim no benefit from Operation Instruction 242.10(a) (6) (iii) because he has not satisfied (and could not satisfy) Travel Control that he can "qualify for third preference".
Buckley cannot qualify for third preference. Third preference is accorded to "members of the professions" and those with "exceptional ability in the sciences or the arts". 8 U.S.C. § 1153(a) (3).
In the context of this statute, the term "professions" includes architects, engineers, lawyers, physicians, and teachers. 8 U.S.C. § 1101(a) (32). Although undoubtedly other callings could be included in the term, the job of mechanic and tool maker is not generally considered one of the "professions" and should not be included in that term.
It is more plausible to argue that a highly skilled mechanic and tool maker like Buckley is one with "an exceptional ability in the arts or the sciences". It would require, however, a radical expansion of the terms "the sciences" and "the arts" to include a mechanic and tool maker. Such an expansive reading of these terms is not suggested by the statute, which provides for those with skills such as those of Buckley by granting them a sixth preference visa. This sixth preference is granted, among others, to those "who are capable of performing specific skilled * * * labor". 8 U.S.C. § 1153(a) (6). Buckley, a mechanic and tool maker, clearly comes within the sixth preference category of "skilled * * * labor" and not in the third preference category of professionals, scientists, and artists.
Furthermore, even had Buckley qualified for third preference, he would not necessarily have been granted the *795 privilege of voluntary departure. Operation Instruction 242.10. The evidence shows that a refusal to grant this privilege to Buckley would not have amounted to any abuse of discretion. Buckley had entered the country as a visitor and had almost immediately violated a condition of his visa by beginning to work for Everlast. He was later granted the privilege of voluntary departure; he failed to take advantage of it. His family is in British Honduras. There is ample reason for the exercise of discretion to refuse the privilege of voluntary departure to someone who had abused other privileges previously extended to him.
Buckley did not qualify for indefinite voluntary departure under the Operation Instructions issued by the Commissioner of Immigration and Naturalization and the evidence before this Court indicates that he never could have so qualified. Any claim that these instructions were applied to him in a discriminatory fashion must fail.
It appears that Buckley is really contending that the distinction drawn by the Operation Instructions between those who qualify for third preference visas and those highly skilled laborers who (like Buckley) qualify for sixth preference visas is arbitrary and unreasonable. The same distinction was drawn by Congress in the statute itself; those who qualify for a third preference are directed to be allotted immigration visas before those who qualify for a sixth preference (8 U.S.C. § 1153). The Operation Instructions simply use the order established by Congress as a basis for determining whether voluntary departure should be granted. It is not arbitrary or unreasonable to give a greater preference to members of the "professions" and to highly skilled scientists or artists than that given to skilled laborers.
The Service has the right to grant the privilege of voluntary departure to those who are felt to be deserving of this privilege. 8 U.S.C. § 1254(e); 8 CFR § 224. The Service has established a rational basis for deciding when this benefit should be extended; adherence to the rules means that the privilege is not extended to Buckley. Neither the rules nor their application to Buckley violate any constitutional right possessed by this alien.
Next, Buckley claims that as a native of a dependent area in the Western Hemisphere he is being discriminated against because there are different quota limitations on dependent areas than on independent countries.
There are indeed such differences. Immigration visas to natives of a dependent area of a foreign state are limited to one per centum of the total immigration visas available to that foreign state. 8 U.S.C. § 1152(c). This means that no more than 200 immigration visas can be given to natives of any dependent area. 8 U.S.C. § 1152(a). At the same time, Congress has provided that natives of independent countries of the Western Hemisphere are subject only to an annual hemisphere quota of 120,000 (79 Stat. 921).
That Congress has established differing quotas for immigrants, depending on whether they are natives of dependent areas or of independent countries, is not unconstitutional. "The exclusion * * * of aliens pursuant to statute falls within that category of policy decisions which, `so far as the subjects affected are concerned, are necessarily conclusive upon all * * * [the government's] departments and officers,' including `the judiciary.'" Hitai v. Immigration and Naturalization Service, 343 F.2d 466, 467 (2d Cir.), cert. denied, 382 U.S. 816, 86 S. Ct. 36, 15 L. Ed. 2d 63 (1965) quoting The Chinese Exclusion Case, 130 U.S. 581, 606, 9 S. Ct. 623, 32 L. Ed. 1068 (1889). Congress has made the distinction. It was entirely within its power in so doing. This Court ought not to interfere in such a policy decision.
Buckley also contends that to deport him would violate his rights under the "Civil Rights Act of 1870". Apparently *796 he is referring to 42 U.S.C. §§ 1981 to 2000h-6 when he speaks of the "Civil Rights Act". Sections 1981 and 1983 are the only applicable sections. Section 1981 provides that the same rights and privileges under the law shall extend to all persons within the jurisdiction of the United States. Section 1983 establishes a civil cause of action for those whose rights have been invaded.
It is difficult to see how Buckley has been deprived of any right or privilege. He has raised no objection to the conduct of the various proceedings before the immigration authorities and the records of these proceedings establish that they met the requirements of procedural due process. This alien has not shown any violation of his rights; he has been leniently treated under valid immigration statutes and regulations. His claim under the Civil Rights Act is without basis.
Next, Buckley asserts that deportation is cruel and unusual punishment in violation of the Eighth Amendment. This argument is completely without merit. Deportation has been "consistently classified as a civil rather than a criminal procedure." Harisiades v. Shaughnessy, 342 U.S. 580, 593, 72 S. Ct. 512, 521, 96 L. Ed. 586 (1951). Thus, even though it may have severe consequences, deportation is not punishment for a crime but a method of returning to his own country an alien not entitled to remain here. Fong Yue Ting v. United States, 149 U.S. 698, 730, 13 S. Ct. 1016, 37 L. Ed. 905 (1892); Cortez v. Immigration and Naturalization Service, 395 F.2d 965, 967 (5th Cir. 1968); Burr v. Immigration and Naturalization Service, 350 F.2d 87, 91 (9th Cir. 1965), cert. denied, 383 U.S. 915, 86 S. Ct. 905, 15 L. Ed. 2d 669 (1966). Since it is not punishment, deportation cannot be cruel and unusual punishment.
Finally, Buckley has a claim in meaningless words which seem to say that he is permitted to appeal the Board's December 11, 1970 order within six months from that date and that to deport him before his appeal time expires is to deprive him of his right to appeal. This contention is dubious at best; if accepted, it would mean that a person threatened with deportation could indefinitely postpone deportation by simply filing motions and appeals at the proper time. More importantly, Buckley no longer has any right to appeal the December 11, 1970 decision because he did file a petition for review with the Court of Appeals and on February 4, 1971 stipulated to withdraw that petition with prejudice.
Although not mentioned in either the complaint or in the affidavits, movant's brief contains an allegation that Buckley is being deported "in accordance with * * * secret rules and regulations" (Plaintiffs' Memorandum of Law, at 22). These "secret rules and regulations" are identified as the Commissioner's Operation Instructions. Buckley is not being deported, however, under any Operation Instructions; he is being deported under the statute, 8 U.S.C. § 1251 (a) (2), because he is illegally in the country. These Operation Instructions affect Buckley only insofar as they serve as a guide in considering his request for voluntary departure; their only effect is that they fail to recommend the extension of the privilege of voluntary departure to beneficiaries of approved sixth preference petitions. The Operation Instructions do not require that requests by such beneficiaries be denied; they simply encourage the granting of requests by beneficiaries of greater preferences. Buckley has not been injured by these Operation Instructions and may not avoid being deported on the ground that he did not know the contents of these instructions.
Everlast also requests this preliminary injunction. It asserts that to deport Buckley would interfere with its contractual relations with him. Granting this to be true, it is difficult to see from this fact any reason to stay a warrant of deportation for an alien illegally in this country. The fact that Everlast *797 hoped to continue to benefit from Buckley's illegal presence in the United States is not sufficient reason to allow him to remain in the country.
The foregoing contains the findings of fact and conclusions of law required by Fed.R.Civ.P. 52(a).
The motion for a preliminary injunction is denied and the temporary restraining order is vacated.
So ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624470/ | 522 So. 2d 547 (1988)
Roger HUTCHINS, Appellant,
v.
Yvonne HUTCHINS, Appellee.
No. 87-1234.
District Court of Appeal of Florida, Fourth District.
March 30, 1988.
*548 Martin L. Haines, III, North Palm Beach, for appellant.
John L. Avery, Jr., Jupiter, for appellee.
PER CURIAM.
Appellant, the husband in a dissolution proceeding, appeals the trial court's order, enforcing an attorney's charging lien against him. We affirm.
On January 6, 1986, the wife, represented by John L. Avery, Jr., filed a petition for dissolution. The petition included a request for temporary and permanent costs and attorney's fees. The husband, represented by Martin L. Haines, III, filed an answer and counterpetition, which also included a request for attorney's fees.
On March 25, 1986, Avery filed a motion to withdraw, stating that the wife had shown dissatisfaction with his services and had stated that she would not pay his fees. On April 16, 1986, he filed a notice and claim of attorney's charging lien, claiming $1,373.75 due for services rendered on behalf of the wife. On May 7, 1986, the court approved a stipulation for substitution of counsel, substituting attorney Joel Weissman for Avery on behalf of the wife.
Thereafter, Weissman and Haines, without notice to Avery, negotiated a settlement of the entire case which was approved by the court. A final judgment of dissolution was rendered in accordance with the settlement, providing, inter alia, that:
[i]n full satisfaction of the wife's claims for alimony and equitable distribution of the assets acquired and/or accumulated during this marriage, the husband shall pay the wife on Friday, August 22, 1986, the sum of $7,500. Said check shall be made payable to Joel M. Weissman trust account and shall be disbursed by the wife's attorney immediately upon receipt.
The final judgment also stated:
Each party will pay his or her respective attorneys' fees and court costs.
Weissman thereafter disbursed the $7,500 but did not make any payment to Avery, who subsequently filed a motion to obtain judgment for his charging lien against both parties, which was granted by the trial court.
The husband does not contest the reasonableness of the amount of Avery's fee, nor does he contend that the charging lien cannot be imposed against the wife. He does, however, assert that the lien cannot be enforced against him in view of the terms of the settlement and final judgment. We disagree.
We approve and adopt the order of the trial court now being appealed which read, in its material parts, as follows:
The court herewith confirms findings previously noted on the record:
1. The former husband did not contest the reasonableness of the amount claimed, $1,373.75.
2. Long before the final judgment in the cause was entered, Mr. Avery filed a notice of his charging lien, (docket number 42).
3. Thereafter, the case was set for trial, but not reached on the trial docket. Next, one of the parties filed an interlocutory motion for contempt. Just before that hearing, the parties and their attorneys, Mr. Weissman and Mr. Haines, decided to settle the whole case. They announced the settlement to the court at the time which had been reserved for the motion for contempt. By the agreement of the parties, the court proceeded to hear the necessary *549 evidence and entered a final judgment consistent with the parties' settlement agreement. Mr. Avery was given no notice of the contempt hearing nor any notice that the matter would, on that date, proceed to final judgment. Accordingly, he had no chance to assert his lien rights at that hearing.
The parties have relied mainly upon three cases. Mr. Avery relies upon Miller v. Scobie, 152 Fla. 328, 11 So. 2d 892 (1943). The former husband relies upon Sinclair, etc. and Zavertnik, P.A. v. Baucom, 428 So. 2d 1383 (Fla. 1983) and Kozich v. Kozich, [501 So. 2d 1386] (4th DCA 1987).
Concerning these cases, it is important to note that in both Sinclair and Kozich, the attorney did not file a notice of lien until after final judgment. The court is of the view that this distinction is all-important. In our case, Attorney Avery has done what the law requires him to do by filing his notice. There is nothing else that he was required to do in order to put the parties on notice.[1] They "settled the case out from under him" as was the case in Miller v. Scobie.
That case holds:
"We do not deny the right of litigants to settle controversies out of court, but any such settlement without the knowledge of or notice to counsel, and the payment of their fees is a fraud on them whether there was an intent to do so or not." (emphasis added)
The court believes that that admonition is absolutely controlling in a case like this in which the notice of the lien claim was given before the settlement was reached.[2]
Accordingly, it is ADJUDGED that John L. Avery, Jr., recover from Roger Hutchins the sum of $1,373.75, for which
let execution issue. The court notes that this liability is joint and several with the judgment in favor of Mr. Avery against Yvonne Hutchins as entered on January 29, 1987.[3]
We are not in conflict with any decision of this state's highest court, nor of this court, in applying the following principle recited in In re the Marriage of Smith, 687 P.2d 519, 520-21 (Colo.Ct.App. 1984), to the present case:
The lien is chargeable against any person who, at the time notice of intent to claim a lien is given, holds monies or property which become proceeds of a judgment to be entered in the future.
Here, husband, wife, and the court had notice of claimant's intent to enforce a lien prior to husband's transfer of $8,000 to wife. These funds, even though transferred prior to judgment and thereafter depleted by wife, were part of the proceeds awarded to wife when the court approved the property settlement as part of the judgment. Therefore, because husband was given notice that the lien would become enforceable against any money and property awarded wife as a part of the judgment, we hold that, on equitable principles, husband cannot avoid enforcement of this claim for payment by transfer of property in anticipation of the approval of the settlement agreement by the final decree. See de Bit v. Howard, 107 Colo. 51, 108 P.2d 1053 (1940).
(Citations omitted.)
ANSTEAD, GLICKSTEIN and GUNTHER, JJ., concur.
NOTES
[1] "There are no requirements for perfecting a charging lien beyond timely notice." Sinclair, etc. and Zavertnick, P.A. v. Baucom, at page 1385. "The requirements for perfection of this lien are not statutorily imposed." Sinclair, etc. and Zavertnick, P.A. v. Baucom, at page 1384.
[2] Sinclair can be further distinguished. In Sinclair, the court notes that the claiming attorney's own client is abiding by the terms of the settlement which make her liable for his fees. The court says further, "We are convinced that in its desire to continue the litigation, petitioner wishes only to preserve for its client the greatest possible benefits of the settlement." That factor is not present in the case at hand.
[3] Mr. Avery asserts that Mrs. Hutchins is "long gone to parts unknown" and there was no argument made by the ex-husband that he (Mr. Avery) can collect on his judgment against her. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624474/ | 522 So. 2d 1166 (1988)
Thomas A. EDMONDS
v.
BOH BROS. CONSTRUCTION CO., and Electro-Coal Transfer Corp.
No. CA-7428.
Court of Appeal of Louisiana, Fourth Circuit.
March 10, 1988.
Charles B. Colvin, Metairie, for plaintiff-appellant.
Grady S. Hurley, Patrick H. Patrick, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for defendants/appellees.
Before SCHOTT, WARD, Joan Bernard ARMSTRONG, JJ.
SCHOTT, Judge.
Plaintiff alleges that while he was working for Boh Bros. Construction Co., Inc. he was injured as a result of the negligence of defendant, Electro-Coal Transfer Corp. Among a number of items of damages he claims is one for punitive damages. From a judgment sustaining defendant's exception of no cause of action as to this single item plaintiff has appealed.
In his petition plaintiff alleges that the accident occurred when defendant's tug *1167 caused an excessive wake which, in turn, caused him to fall from a barge where he was working for Boh Bros.; that the defendant engaged in the reckless operation of a vessel; and that its misconduct was willful and wanton entitling him to punitive damages.
Under Louisiana Law a plaintiff has no cause of action for punitive damages except where authorized by statute. Since this is a maritime claim, however, our courts must apply federal substantive law. Gaspard v. Transworld Drilling Company, 468 So. 2d 692 (La.App. 3d Cir.1985); writ denied, 474 So. 2d 1304 (La.), cert. denied, 475 U.S. 1067, 106 S. Ct. 1382, 89 L. Ed. 2d 607. Under federal maritime law punitive damages may be imposed for conduct which manifests reckless or callous disregard for the rights of others or for conduct which shows gross negligence. Protectus Alpha Navigation v. North Pacific Grain Growers, Inc., 767 Fed.2d 1379 (9th Cir.1985).
Defendant correctly asserts that the court in considering an exception of no cause of action considers only the factual allegations of the petition and determines whether the law affords relief to plaintiff if those facts are proved at trial. Robinson v. North America Royalties Inc., 470 So. 2d 112 (La.1985). When stripped of conclusory allegations, which may not be considered on an exception of no cause of action, plaintiff's petition contains only the assertion that the wake from defendant's tug caused him to fall. He does not allege specific facts which may support the conclusion that the wave wash was "excessive", or why defendant's conduct should be classified as "misconduct" and characterized as "willful and wanton". However, in argument plaintiff alludes to many unpleaded facts which may support the conclusion he asserts. Thus, it appears that he may be able to remove the grounds for defendant's objection to his petition by amending it. Under these circumstances the trial court was compelled to provide plaintiff with an opportunity to amend his petition, LSA-C.C.P. art. 934.
Accordingly, that portion of the judgment appealed from sustaining defendant's exception of no cause of action for punitive damages is affirmed, but amended to order plaintiff to amend his petition within the delay allowed by the trial court. Costs of this appeal are taxed against defendant. Other costs are to await the outcome of the case.
AMENDED AND AFFIRMED.
WARD, J., concurs.
WARD, Judge, concurring.
I concur in the judgment of the Court because I believe that the Trial Judge correctly maintained Electro-Coal's exception of no cause of action, and that Edmonds should be given the opportunity to amend his petition. In my view, however, that part of the petition claiming punitive damages is insufficient, not because it fails to set forth facts to support a claim for punitive damages under general maritime law, but because it fails to set forth facts to support a claim for punitive damages against an employer for the actions of its employee.
The allegations in the petition are sufficiently specific to indicate the conduct upon which Edmonds bases his claim for punitive damages. I believe that any additional facts concerning that conduct which Edmonds may allege in an amended petition will do little to clarify his claim. While legal conclusions do not suffice under Louisiana's procedural requirements, Edmonds alleged all that was required. Allegations of Electro-Coal's reckless operation of a vessel and willful, wanton misconduct, read together with the allegation that an Electro-Coal vessel caused excessive wake, can only mean that Edmonds is asserting that an Electro-Coal employee willfully and wantonly operated a vessel which caused excessive wave-wash, causing his injury. I believe this is sufficient, and therefore I would not remand for further clarification of these facts.
Willful, wanton, or reckless conduct may support a claim for punitive damages, but such conduct does not necessarily support Electro-Coal's liability for punitive damages *1168 in this case. When the defendant's employee's conduct is the basis for a claim for punitive damages, a finding of willful, wanton, or reckless conduct by the employee does not necessarily support an award of punitive damages against his employer.
Several recent cases have examined the factual situations under which employers may be held liable for punitive damages for the conduct of their employees. Protectus Alpha Navigation Co. v. North Pacific Grain Growers, Inc., 767 F.2d 1379 (9th Cir.1985), adopted the Restatement of Torts, 2d criteria. However, McGuffie v. Transworld Drilling Co., 625 F. Supp. 369 (W.D.La.1985), rejected the Restatement, and adopted a stricter position. Nonetheless, we need not decide whether to apply the Protectus Alpha or McGuffie criteria, because Edmonds has not alleged facts that would bring his claim under either case.
Thus, Edmonds's petition does not state a cause of action against Electro-Coal for punitive damages based upon the conduct of its employee. He should, nevertheless, be given the opportunity to amend his petition to cure this defect, and I would remand for this purpose only. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624488/ | 522 So. 2d 137 (1988)
Lillie P. WINN, Individually and as Provisional Tutrix for Leroy Winn and Tawanna Denise Winn, Plaintiffs-Appellees,
v.
THOMPSON-HAYWARD CHEMICAL COMPANY, Defendant-Appellant.
No. 19697-CA.
Court of Appeal of Louisiana, Second Circuit.
February 24, 1988.
*139 Lunn, Irion, Johnson, Salley & Carlisle, for defendant-appellant.
Sam N. Gregorio by Jim McDougle, for plaintiffs-appellees.
Before MARVIN, JASPER E. JONES and NORRIS, JJ.
MARVIN, Judge.
In this worker's compensation action, the employer appeals a judgment awarding death benefits to the concubine and informally acknowledged illegitimate minor children of its employee who died from a stroke while at work.
Claimants answer the appeal and seek statutory penalties and attorney fees.
In all respects, we affirm.
The employer contends the fatal stroke was not causally work-related and that claimants were not "dependent" on the decedent. Alternatively, the employer contends that the benefits which might be owed the illegitimates should derive from their being classified as "other dependents" rather than "children" under the statutory definitions.
FACTS
The 42-year-old decedent, Leroy Rochelle, Jr., worked, without a helper, as a truck driver and delivery-man for several years before his stroke on September 19, 1985. He suffered from high blood pressure or hypertension for more than three years and was off work for about two weeks in 1982 because of the hypertension. His condition was known to his employer. He averaged working almost 45 hours per week during 1985.
Between 7:00 a.m. and 1:30 p.m. on September 19, 1985, the decedent made deliveries to 11 customers of about 17,000 pounds of his employer's products that were contained in bags, boxes, and drums. Many of the individual orders delivered totalled several hundred pounds. One customer's order totalled 7,000 pounds. Some smaller orders were unloaded and delivered manually by decedent. On other orders decedent used the hydraulic lift gate of his truck and a two-wheeled dolly to unload and deliver. Decedent drove a truck with power steering and standard transmission, the air conditioning system in which was not working on the fatal day. Temperature reached 90° F. that afternoon.
Between 1:30 and 3:00 p.m., at the employer's warehouse, decedent ate lunch and waited for his truck to be loaded with orders scheduled for afternoon delivery. These orders totalled more than 1,200 pounds. To his first customer, the decedent delivered nine 100-pound bags of detergent. The customer noted that decedent took longer than usual to complete the delivery and did not complain about any physical condition.
At decedent's ultimately fatal stop that afternoon, the customer noticed that decedent did not control the truck as he usually did and that he "jerked" the truck when stopping it. Departing the truck, decedent supported himself on the door, complaining of feeling dizzy, stating that he had been "feeling bad" since his last delivery. The customer called an ambulance for decedent who thereafter sat or laid on the ground and was unable to respond to questions by the customer who unloaded his own order.
Decedent was unconscious when he arrived at the hospital where he was diagnosed as suffering a massive stroke. Without regaining consciousness, he died two days later.
MEDICAL EVIDENCE
Decedent suffered a hemorrhagic stroke from the rupture of a blood vessel in his brain. The hemorrhage increased the pressure on his brain tissue and caused first the dizziness and then loss of consciousness.
*140 A CT scan showed that the rupture occurred in one of the small blood vessels which are commonly weakened in persons with chronic hypertension.
The internist, who examined decedent in the emergency room, and a cardiologist, who reviewed the medical records, opined that activities such as driving and lifting heavy objects tend to increase blood pressure. The cardiologist explained that gripping and turning a steering wheel causes tension and increases blood pressure more than many occupational activities, even though driving requires less muscular exertion.
The cardiologist opined that there was a reasonable probability that decedent's work activities in some degree contributed to an increase in blood pressure which ultimately caused the stroke. Because of decedent's hypertension, one of his smaller and weakened blood vessels was destined to rupture, whether decedent was at work or at home, according to the internist. The internist agreed that decedent's work activities would raise his blood pressure and that decedent's work on the day of the stroke could have been the "last straw" that caused the blood vessel to rupture.
Both doctors agreed that decedent's exertion at work, driving, unloading and delivering, was greater than the exertion of someone not at work.
CAUSAL LINK BETWEEN WORK AND STROKE
An employee's accidental injury is compensable under the worker's compensation law if it arises out of and in the course of his employment. LRS 23:1031. Decedent's stroke clearly occurred in the course of his employment. The critical issue is whether the stroke "arose out of" his employment.
The law is set forth in Reid v. Gamb, Inc., 509 So. 2d 995 (La.1987):
[I]t is well settled that the occurrence of a cerebral vascular accident, or stroke, is a "personal injury by accident" within the ambit of La.R.S. 23:1031. * * *
[I]t is not necessary for the claimant to prove that the work was the sole cause of the ... injury, so long as it is shown to be a contributing, accelerating or aggravating factor. The presence of a history of arteriosclerosis or even the fact that a heart attack was "inevitable" does not necessarily rule out an award. * * *
[I]f the physical exertion, stress or strain on the job, and preceding the [stroke], is no more than the worker would likely have experienced in a non-work situation, the [stroke] may be a result of the natural progression of a preexisting disease rather than the result of the employment activity. In order to avoid unfairly charging the employer with the cost of strokes not causally related in some way with the employment, if the employee has a preexisting weakness or condition that predisposes him to a cerebral vascular accident, the claimant should be required to prove that the [exertion, stress or strain of the] employment acting on the preexisting condition was [of] a degree greater than that generated in everyday non-employment life.
509 So.2d at 996-998; citations omitted. Emphasis and bracketed material supplied.
Reid was rendered on the day the trial court issued written reasons for judgment. The trial court correctly relied on Guidry v. Sline Indus. Painters, Inc., 418 So. 2d 626 (La.1982), a heart attack case. Reid follows Guidry and provides methodology by which the causation issue in stroke cases should be analyzed and resolved. See also, Juge, Cardiovascular Claims in Workers' Compensation: The Evolving Law, 32 Loy.L.R. 895 (1987).
The trial court found that decedent's stroke arose out of his employment because his work activities on the day of the stroke "created a considerably greater degree of stress and strain than that which he would have experienced, had he been in an everyday, non-employment situation." This factual finding is amply supported by the law and the evidence. The internist's opinion that a stroke was inevitable does *141 not avail the employer. Reid, quoted supra.
ROCHELLE'S FAMILY
Decedent and Lillie Winn lived together from 1968 until decedent's death. Although they were not married, they maintained and projected to others a husband-wife relationship. They had two children, a son, born in 1969, and a daughter, born in 1973. No name was shown as the father on the birth certificate of either child, but decedent informally acknowledged them as his children in his words and actions. He told friends and relatives they were his children. He actively participated in raising them, financially and otherwise. There is no evidence indicating that decedent had other children. Ms. Winn had two adult children and a grandchild who lived in the household. The claim for death benefits is made only by Ms. Winn and the two children decedent acknowledged as his.
ILLEGITIMATES AS "CHILDREN"?
The employer contends the trial court erred in classifying the two illegitimates under the worker's compensation law in the same classification that is provided for legitimate or formally acknowledged illegitimate children.
LRS 23:1021(3) defines "children" as "only legitimate children, step-children, posthumous children, adopted children, and illegitimate children acknowledged under the provisions of Civil Code Articles 203 and 205." Our emphasis. C.C. Articles 203 and 205 contemplate only formal acknowledgment, either by notarial act or in the registry of the child's birth or baptism.
"Children" are conclusively presumed to be wholly and actually dependent on the deceased employee. The age and residency requirements of LRS 23:1251 for "children" are satisfied and are not at issue here. A claimant not within the definition of "child" may claim death benefits as an "other dependent" upon proving dependency under § 1252. The calculation of benefits under § 1232 is more favorable for "children" than it is for "other dependents."
Before 1972, informally acknowledged illegitimate children recovered death benefits only as "other dependents" and not as "children" of the deceased employee, even where the decedent did not leave other legitimate or formally acknowledged illegitimate children. See Thompson v. Vestal Lumber & Mfg. Co., 208 La. 83, 22 So. 2d 842 (1945), and Williams v. Jahncke Service, 55 So. 2d 668 (Orl.App.1951).
In Stokes v. Aetna Casualty and Surety Company, 257 La. 424, 242 So. 2d 567 (1970), the decedent's household included his four legitimate children and his two unacknowledged illegitimate children. The maximum death benefits were exhausted by the legitimate children, leaving nothing for the illegitimate children. No unconstitutional discrimination in the statutory scheme was found. The court reasoned that the statute did not deny unacknowledged illegitimates a right to benefits, but simply relegated them with other dependent relatives such as parents, to a less favorable position in the statutory scheme. 242 So.2d at 570.
The Supreme Court granted certiorari and reversed that ruling under Constitutional restraints, in Weber v. Aetna Casualty & Surety Company, 406 U.S. 164, 92 S. Ct. 1400, 31 L. Ed. 2d 768 (1972):
So far as this record shows, the dependency and natural affinity of the unacknowledged illegitimate children for their father were as great as those of the four legitimate children whom Louisiana law has allowed to recover. The legitimate children and the illegitimate children all lived in the home of the deceased and were equally dependent upon him for maintenance and support. It is inappropriate, therefore, for the court below to talk of relegating the unacknowledged illegitimates "to a less favorable position as are other dependent relatives such as parents." The unacknowledged illegitimates are not a parent or some "other dependent relative"; in this case they are dependent children, and as such are entitled to rights granted other dependent children. * * *
*142 It may perhaps be said that statutory distinctions between the legitimate and illegitimate reflect closer family relationships in that the illegitimate is more often not under care in the home of the father nor even supported by him. The illegitimate, so this argument runs, may thus be made less eligible for the statutory recoveries and inheritances reserved for those more likely to be within the ambit of familial care and affection. Whatever the merits elsewhere of this contention, it is not compelling in a statutory compensation scheme where dependency on the deceased is a prerequisite to anyone's recovery, and where the acknowledgment so necessary to equal recovery rights may be unlikely to occur or legally impossible to effectuate even where the illegitimate child may be nourished and loved.
92 S.Ct. at 1403-4, 1405-6. (Footnote omitted).
When Weber was decided, C.C. Art. 204 prohibited the acknowledgment of a child if the parents were incapable of contracting marriage at the time of the child's conception but allowed acknowledgment if the parents later married. The definition of "children" in LRS 23:1021(3) then included children "acknowledged under the provisions of Civil Code Articles 203, 204, and 205."
Article 204 was repealed by Act 607 of 1979. The reference to Art. 204 in § 1021(3) was removed by Act One of 1983, 1st Ex.Sess. The current definition in § 1021, which includes children formally acknowledged under the provisions of C.C. Arts. 203 and 205, continues the pre-Weber classifications and does not mention informally acknowledged illegitimate children.
Act One of 1983, 1st Ex. Session, substantially revised the worker's compensation law but did not change the definition of children other than to delete the repealed civil code article number (204). This cosmetic change does not purport to alter the statutory classification condemned by Weber that informally acknowledged illegitimate children are less favorably benefited than legitimate or formally acknowledged illegitimate children. The legislature's oversight notwithstanding, we are mandated by the federal [and 1975 state] constitution to interpret § 1021 to include informally acknowledged illegitimates in the same classification as formally acknowledged illegitimates and legitimates.
Decedent's words and conduct compel the conclusion that the two children were informally acknowledged as his. They lived in the same household with decedent from the time they were born until his death, when they were 16 and 12 years of age. He spoke of them as his children and treated them as such. Their natural affinity for their father and their deprivation of support from their father's work-related death cannot be regarded as any different from that which legitimate children, of a marriage or by formal acknowledgment, experience in similar circumstances. The fact that decedent had no legitimate or formally acknowledged children to "compete" with these claimants for benefits does not make Weber inapplicable or mandate reversal.
The Weber decedent was married to someone other than the mother of his illegitimate children. C.C. Art. 204 then made it legally impossible to legitimate those children by formal or informal acknowledgment. There is no evidence that our decedent, Rochelle, was prevented from formally acknowledging the two children, either before or after the repeal of Art. 204 in 1979. The fact that he did not formally acknowledge them does not allow us to circumvent Weber.
Weber condemned the C.C. Art. 204 legal bar to acknowledgment as one of the many burdens that Louisiana law placed on illegitimate claimants. See text accompanying FN. 9, 92 S.Ct. at 1404. The Supreme Court recognized that acknowledgment was unlikely or legally impossible of occurring. P. 1406, quoted supra.
The trial court properly classified these claimants as "children" under Weber and properly applied the statutory presumption that they were actually and wholly dependent on Rochelle's earnings for support at *143 the time of his accidental injury and death. LRS 23:1231, 1232, 1251. Because § 1251 makes the presumption conclusive, we need not consider the employer's argument that the children's dependency was rebutted by the evidence.
CLASSIFICATION OF CONCUBINE; PROOF OF DEPENDENCY
Ms. Winn's status as a concubine stems from her openly and permanently living with Rochelle as husband and wife. Without benefit of marriage, she is relegated to the status of an "other dependent." Henderson v. Travelers Ins. Co., 354 So. 2d 1031 (La.1978). As such, she is not favored with the presumption of dependency afforded a surviving spouse under § 1251. Unlike the informally acknowledged illegitimates, she must prove her dependency. § 1252.
The trial court found she was actually and wholly dependent on Rochelle's earnings for support. This finding is supported by the record and is not clearly wrong.
Rochelle's household included Ms. Winn and her four children and Ms. Winn's grandchild by one of her older children. The mother of the grandchild contributed $50 per month toward household expenses. Ms. Winn was unemployed and received $240 per month from Aid to Families with Dependent Children. When she applied for this assistance, Ms. Winn lied to AFDC, representing that Rochelle was not living in the home and was contributing only $10 per week to the support of his two children! Ms. Winn admitted her lie at trial, explaining she needed additional financial help.
Rochelle's net monthly income of $800 was about 73 percent of the household's total monthly income of $1,090. In addition to fixed monthly expenses of about $725 for rent, utilities, food, and installment payments for furniture, there were expenses in varying amounts for gasoline for Rochelle's car and for the cost of educating and clothing his two school-age children.
Ms. Winn testified that the amount of money Rochelle gave her to run the household varied from $50 to $200 per week. On this statement, the employer argues that Rochelle did not use all of his take-home pay to support her and the children. Ms. Winn testified, however, that when Rochelle gave her less than his entire paycheck of $200, he paid some of the household expenses directly out of the money he retained. She also testified that Rochelle gave her money at other times and when she did not ask him for it. The record does not substantiate the bald inference that Rochelle spent significant portions of his earnings on things other than the support of his family.
A showing of actual dependency does not require proof that the claimants, without decedent's contributions, would have lacked the necessities of life, but requires only the showing that claimants relied on decedent's contributions to maintain their accustomed mode of living. Hurks v. Bossier, 367 So. 2d 309 (La.1979).
Details of the household income and expenses substantiate Ms. Winn's testimony that she relied on Rochelle's income to maintain the accustomed standard of living of herself and two children. The trial court correctly found that Ms. Winn was actually dependent on Rochelle.
We also find that the trial court was not clearly wrong in concluding that Ms. Winn was totally, rather than partially, dependent on Rochelle's earnings. The $50 per month contributed by Ms. Winn's daughter obviously did little to defray the expenses of the daughter and the grandchild, and did not otherwise benefit Ms. Winn.
The AFDC case worker testified that Ms. Winn was allocated $58 of the $240 monthly payment with the balance being allocated to Rochelle's two children and to Ms. Winn's grandchild. Notwithstanding the AFDC designated allocation, Ms. Winn's testimony explains that the AFDC money was sought and used to help support her two older children because the father of the older children was not supporting them.
We do not condone Ms. Winn's misrepresentations to AFDC to obtain additional *144 money for the household, but we cannot consider the $58 monthly allocation to her to be a substantial source of income for her own support. The record supports the trial court's finding that Ms. Winn was totally dependent on Rochelle's earnings for her own support. Compare Moore v. Millers Mut. Fire Ins. Co. of Texas, 406 So. 2d 708 (La.App.2d Cir.1981), writ denied. There, decedent's mother was found to be partially dependent on decedent's earnings because she also received substantial contributions toward her support from other members of the household.
MS. WINN'S BENEFITS
The trial court awarded Ms. Winn weekly benefits equivalent to 18¾ percent of Rochelle's average weekly wages. This percentage is the difference between the 46¾ percent payable to the two Rochelle children and the 65 percent statutory maximum provided in LRS 23:1232. The employer contends Ms. Winn's benefits should not exceed 12 percent of his average wage since her pro-rata share of expenses in a seven-person household is only about 12 percent. The calculation of benefits under § 1232 does not depend on the number of the persons in the household, but on the number, status and extent of dependency of the persons in the category of compensation claimants. Rochelle's two children are legally entitled to 46¼ percent of his average weekly wages. Ms. Winn is the only "other dependent." Had she been the sole claimant, Ms. Winn would have been entitled to 32½ percent of his average weekly wages. Because the children's priority claims were recognized, Ms. Winn was correctly awarded the difference between their share of the benefits and the statutory maximum of 65 percent.
PENALTIES AND ATTORNEY FEES
The trial court denied the claimants' demand for statutory penalties and attorney fees, finding that the legal and factual issues were "close" and that the employer was not arbitrary and capricious in failing to pay benefits. The claimants challenge these findings in answer to the appeal. We affirm the trial court's result without reaching the factual issue whether the employer's denial of benefits was arbitrary and capricious.
The "arbitrary and capricious" standard continues to apply to attorney fee awards under LRS 23:1201.2 after the 1983 revision of the law, but does not apply to the penalty under § 1201. Assessment of penalties after 1983 is determined by inquiring whether the employer or its insurer has "reasonably controverted" the compensation claims. Penalties, when assessed, are assessed "against either the employer or the insurer, depending upon who was at fault in causing the delay."
We assume, for discussion purposes and without deciding, that there was no reasonable controversy as to the claimants' entitlement to death benefits.
Claimants named only the employer as a defendant and prayed for judgment only against the employer. Claimants alleged that the employer was insured and that they were notified by letter from American International Adjustment Company, Inc., that their demands for death benefits were being denied. Claimants' discovery pleadings were directed to the employer and to the adjustment company. At trial, it was stipulated between claimants and the employer that National Union Fire Insurance Company provided worker's compensation insurance to the employer at the time of Rochelle's stroke. The only answer to claimants' petition was filed on behalf of the employer and the adjustment company. The stipulated worker's compensation carrier, National Union, never appeared in the action in any manner except for the stipulation, and claimants never joined either the adjustment company or National Union as a party defendant.
The answer and the objections to discovery by the employer and the adjustment company do not make the adjustment company either a party defendant, an intervenor, or the worker's compensation insurer of the employer. Even though the adjustment company "appears" in the record in the manner stated and National Union is stipulated to be the employer's worker's *145 compensation insurer, neither the adjustment company nor National Union is a "party" to the action who can be cast in judgment.
Where a liability insurer of a named defendant tortfeasor has been named by its insured as a third-party defendant, judgment on the main demand in favor of plaintiff cannot be rendered against the liability insurer even though the insurer is cast in judgment in favor of its insured on the third-party demand. Heckel v. Travelers Ins. Co., 340 So. 2d 363 (La.App. 1st Cir. 1976); Kling v. Collins, 407 So. 2d 478 (La. App. 1st Cir.1981). Even though worker's compensation coverage is stipulated, the insurer cannot be cast in judgment where plaintiff has not joined the insurer as a defendant. Any judgment against the non-joined insurer is null. Brock v. Tidewater Construction Company, 318 So. 2d 100 (La.App. 3d Cir.1975).
The adjustment company is not the worker's compensation insurer who can be assessed penalties under § 1201. The insurer is not a defendant and cannot be assessed penalties under the authorities cited above. The defendant employer cannot be assessed penalties on this record because the delay in the payment of benefits by the adjustment company is not shown to have been legally attributable to the employer.
Attorney fees may be assessed only against an insurer or against a self-insured employer. § 1201.2. Decedent's employer, stipulated by claimants to have been insured, is not a self-insured employer and cannot be assessed with attorney fees. The employer's insurer, National Union, is not a defendant and cannot be assessed with attorney fees. The adjustment company is not the employer's insurer and cannot be assessed with attorney fees.
The trial court's result as to attorney fees and penalties is correct and is affirmed, notwithstanding that we assume the failure to pay benefits was not warranted under the statutes. See Caldwell v. Second Judicial District Indigent Defender Board, 475 So. 2d 96 (La.App. 2d Cir. (La.App. cir. if as) 1985), writ denied; Ogden v. Dalton, 501 So. 2d 1071 (La.App. 2d Cir.1987).
DECREE
At the cost of the employer, the judgment appealed is AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624451/ | 43 N.W.2d 726 (1950)
DAWSON
v.
LAUFERSWEILER.
No. 47621.
Supreme Court of Iowa.
August 1, 1950.
*727 Kelleher & Kelleher and Helsell, Burnquist & Bradshaw, all of Fort Dodge, for appellant.
Breen, Breen & McCormick, Loth & Melton and Rider & Bastian, all of Fort Dodge, for appellees.
GARFIELD, Chief Justice.
The question for decision is whether construction of a funeral home across the *728 street from plaintiffs' residence should be enjoined as a threatened nuisance.
In September, 1948, defendant, an undertaker, purchased for $20,000 lots 1, 2 and 3 in a certain block 16 in the city of Fort Dodge (1940 population 22,904). He then moved from the ground the old house there situated and excavated for a funeral home. The ground is the northwest corner of block 16 with a west frontage of 152 feet on 12th Street and a north frontage of 139 feet on 3d Avenue South. Since 1937 plaintiffs Dr. and Mrs. Dawson have owned and occupied the large residence across 3d Avenue from defendant's property in the southwest corner of block 17 with a west frontage of 76 feet on 12th and a south frontage of 187 feet on 3d Avenue.
Immediately north of the Dawson property are two houses, one behind the other, used for apartments, owned by the Howards, also named as plaintiffs. However, since they apparently took no part in the trial we refer to Dr. and Mrs. Dawson as if they were sole plaintiffs.
Upon removal of the old house and before excavation was completed in November, 1948, this suit was started to enjoin construction of the funeral home. After trial the district court held the place would be a nuisance and enjoined its construction. Defendant has appealed. We review the case de novo. Rule 334, Rules of Civil Procedure.
The intersection of 3d Avenue South and 12th Street where plaintiffs live and defendant wants to build the funeral home is surrounded at varying distances by residences. Many of the older and better homes in the city are near by. However, the main business district to the north and west has expanded to within a block from this intersection.
Central Avenue which runs westerly from 12th Street is the principal business street. Other streets that parallel Central Avenue south of it are also called avenues and are numbered from north to south commencing with 1st Avenue South, also essentially a business street west of 12th. North and south streets are called streets and are numbered from west to east. Business establishments face most of 12th Street between the east end of Central Avenue and 2d Avenue South and also for a distance north from Central.
Along 12th Street south from 2d Avenue are mostly dwellings, single or multiple. However, at the south side of 2d Avenue and the east side of 12ththe northwest corner of block 17 in which plaintiffs live there is a Standard Oil filling station. There is one house, used for apartments, between the front Howard house (next to plaintiffs') and the oil station. About 200 feet east of this station is the Shimkat DeSoto-Plymouth garage with a north frontage of 50 feet on 2d Avenue. Between the oil station and the garage are two houses used for apartments and a row of nine single garages.
East of Shimkat's garage are three houses facing east on 13th Street. Roomers are kept in these houses. The southeast corner of block 17 is a playground belonging to a Catholic church and school which are across 13th Street in block 12, east of 17. Adjoining the playground is a row of ten individual garages. Between plaintiffs' home and the playground are two duplex houses, one behind the other. We have now referred to all the buildings on block 17. The territory south, east and west from plaintiffs' home is residential.
Plaintiffs purchased their property in 1937 for $8000. They recently spent $3500 to $4000 on improvements. Mrs. Dawson says its value was $26,000 to $30,000 in the summer of 1948. Dr. Dawson testifies they were offered $16,000 recently, apparently after the funeral home was planned. Mrs. Dawson says their property would have very little value as a home if the funeral parlor is built. A real estate agent testifies the funeral home would decrease the value of plaintiffs' residence and others in the locality around 25 per cent. Dr. Dawson says he would not expect to continue to live in his home if the funeral parlor is permitted.
Plaintiffs' main objection to the funeral home is the claimed depressing effect any such place in that location would have upon the members of their family. However, there is much testimony as to heavy *729 traffic on 12th Street and it is urged as one basis for relief that traffic would be much worse if the funeral home were permitted.
Mrs. Dawson testifies the prospect of the funeral home has made her, her husband and three children, 11 to 14, very unhappy and they would be depressed by it. The living room, dining room and two bedrooms are on the south side of their house where they would look out at the funeral home. Dr. Dawson, a physician and surgeon, says his main objection to the funeral home is on account of his wife, children and guests who might be sensitive about proximity of such a place.
Aside from Dr. Dawson five physicians express the opinion that people, especially children and the sick, living near a funeral home are depressed by it. One says "it is just the thought a dead body is in there." A man and wife who live across 12th Street about a half block south of defendant's corner testify the funeral home would have a very depressing effect on them. There is some other such testimony and also that the funeral home would lower the value of nearby property.
Defendant plans to erect a building of brick and stone, 70 feet by 80 feet, two stories and basement, soundproof, airconditioned, estimated to cost $85,000. It would be back 20 feet from the sidewalk along 12th Street and 35 feet from the sidewalk along 3d Avenue, about 126 feet south of plaintiffs' home. Both 12th Street and 3d Avenue are 70 feet wide between sidewalks. Entrance to the funeral home would be from 12th Street. A U-shaped drive would permit vehicles to enter the grounds from 12th and leave on the same street. During a funeral the casket would be transferred to the sedan used for a hearse in an enclosure at the south side of the buildingon the opposite side from plaintiffs' home. Defendant plans to landscape the grounds and to set out Norway spruce trees along the outside, except on the west, for privacy and seclusion. He intends to have a small neon sign in front of the funeral home.
Defendant testifies no embalming would be done at the new home nor would a supply of caskets be kept there. Embalming would be done at his present mortuary at 11th Street and 1st Avenue South, about 2½ blocks from the new location. Caskets would be kept in defendant's present warehouse. Neither hearse nor ambulance would be kept in the new location. There would be attendants' sleeping quarters on the second floor of the new building and a chapel on the first floor where services may be held. However, about 80 per cent of the funerals defendant conducts are held in a Catholic church. The last three years defendant has had from 115 to 130 funerals a year.
At the time of trial in the spring of 1949 defendant held an option to purchase lot 4, block 16, east of the parcel he purchased in September and says he will buy lot 4 for parking space if permitted to build the funeral home. Lot 4 would give defendant a total frontage of 186 feet on 3d Avenueabout the same frontage plaintiffs have on that street.
At least eight witnesses for defendant say they have lived close to one or more of three funeral homes in Fort Dodge without experiencing any horror or depressed feeling because of the location and they observed no such effect upon their children or others. There is some other testimony of this nature. One of these other funeral homes is at the northeast corner of block 12, just east of block 17 in which plaintiffs live at the southwest corner. Another is at 10th Street and 1st Avenue South, about three blocks northwest of plaintiffs' home. The largest apartment building in Fort Dodge is across the street from this mortuary. We have referred to defendant's present establishment a block east of the one last mentioned. There are rented apartments in the building used for defendant's present mortuary.
A casket salesman who has traveled in Iowa testifies about 95 per cent of the funeral homes in the state are in a residential area and names many cities and towns where this is true.
Defendant also offered evidence as to the heavy traffic in the vicinity of his present mortuary and that it would be *730 partly relieved by use of his newly acquired property.
The above is a sufficient indication of the evidence.
We now consider ordinance 748, apparently enacted pursuant to chapter 415, Code, 1946, I.C.A., and the permit issued defendant by the city thereunder, claimed to be a complete defense to this action. The ordinance establishes a restricted residence district in the six blocks between 3d and 6th Avenues South and between 12th and 14th Streets, makes it unlawful to erect or occupy therein any building except a residence, school or church without first securing a permit and provides no permit shall issue when 60 per cent of the resident owners in the district object. Defendant's property is in the northwest corner of this district. Plaintiffs' residence is just outside the district and block 17 is not restricted to residences. Any commercial building may be built there without violation of any ordinance.
Defendant applied to the city for a permit to build his funeral home, notice of hearing was published and hearing had at which the matter was referred to the city engineer who reported back that 64 resident owners in the district had signed a consent and 31 had signed objections to the issuance of the permit. The council then authorized its issuance.
Obtaining the permit met requirements of the ordinance and precluded an action by the city under Code section 415.3 for violation of the ordinance. However, plaintiffs claim no such violation. Their right to relief depends on whether defendant's establishment will be a nuisance. The permit does not afford a complete defense to this action if the funeral home will be a nuisance. The permit did not and could not authorize a nuisance. A court of equity may properly determine the question of nuisance even though the permit was issued.
These views find support in Pauly v. Montgomery, 209 Iowa 699, 705, 706, 228 N.W. 648; Payne v. Town of Wayland, 131 Iowa 659, 661, 109 N.W. 203; Hatcher v. Hitchcock, 129 Kan. 88, 281 P. 869, 872; Gunderson v. Anderson, 190 Minn. 245, 251 N.W. 515, 516; Sweet v. Campbell, 282 N.Y. 146, 25 N.E.2d 963, 964; Appeal of Perrin, 305 Pa. 42, 156 A. 305, 79 A.L.R. 912, 915, 916; Anno. 166 A.L.R. 659, 664; 39 Am.Jur., Nuisances, section 208. See also Cowin v. City of Waterloo, 237 Iowa 202, 21 N.W.2d 705, 163 A.L.R. 1327. Funnell v. City of Clear Lake, 239 Iowa 135, 30 N.W.2d 722, cited by defendant, is not in conflict with these views.
However, granting the permit pursuant to the ordinance is an expression of municipal thought and opinion which it is proper to consider on the question of nuisance although it is not conclusive. Appeal of Perrin, supra; White v. Old York Road Country Club, 322 Pa. 147, 185 A. 316, 318.
Defendant contends action of the city as to the permit constitutes a complete defense because there was no pleaded issue as to its validity. Plaintiffs' petition alleges the area in question is residential and the funeral home would constitute a nuisance. Defendant's answer states the area is part commercial, part residential, that while a district south of 3d Avenue and east of 12th Street was restricted to residences the restrictions were waived in compliance with city ordinances. There was no reply.
Defendant is not entitled to a reversal because of the state of the pleadings or plaintiffs' failure to reply. The petition and answer raise a disputed issue as to the character of the area and the existence of a threatened nuisance. Therefore no reply was necessary. See Verlinden v. Godberson, 238 Iowa 161, 164, 25 N.W.2d 347, 349; Shalla v. Shalla, 237 Iowa 752, 764, 23 N.W.2d 814, 820.
Further, the trial proceeded as if the issues were complete. No claim was made in the trial court that plaintiffs' failure to attack the permit by pleading was fatal to their case. It is now too late for defendant to contend otherwise. See Wilson v. Corbin, Iowa, 41 N.W.2d 702, 709, and citations.
The authorities agree that undertaking is a lawful and necessary business *731 and a funeral home is not a nuisance per se. However, it may become a nuisance from the manner in which it is conducted and, according to many authorities, because of its location. There is no fixed rule governing all cases of this kind each must be determined upon its own facts. See Beisel v. Crosby, 104 Neb. 643, 178 N.W. 272, 273; Hatcher v. Hitchcock, supra, 129 Kan. 88, 281 P. 869, 872; Cunningham v. Miller, 178 Wis. 22, 189 N.W. 531, 534, 23 A.L.R. 739, 742; O'Malley v. Macken, 182 Minn. 294, 234 N.W. 323, 324; Jack v. Torrant, 136 Conn. 414, 71 A.2d 705, 709; Anno. 87 A.L.R. 1061.
When it is sought to establish a funeral home in a purely residential district it is held by many decisions to be a nuisance. In Bevington v. Otte, 223 Iowa 509, 273 N.W. 98, we held a funeral home in a purely residential district was a nuisance. In the cited case no business was located within four or five blocks of the place. Two plaintiffs lived much nearer defendants' establishment than plaintiffs do here. The driveway where bodies were loaded and unloaded was only about 19 feet from the Bevington residence. The Otte funeral home was not soundproof. No permit had been issued for it. As stated, issuance of a permit pursuant to ordinance is a proper matter to consider on the question of nuisance although it is not conclusive. We think Bevington v. Otte is not controlling here.
In any event, we are not now prepared to hold, as plaintiffs apparently would have us, that every funeral home, even when properly maintained and operated, is necessarily a nuisance merely because it is located in a residential district. Of course it may become a nuisance under the facts of a particular case.
There is no evidence defendant would not conduct his funeral home according to approved practices or that plaintiffs would be subjected to disagreeable odors or danger of disease. According to the testimony plaintiffs or other neighbors would not see caskets loaded or unloaded nor hear funeral services. (We find no case of this kind in which the building sought to be enjoined was to be soundproof.)
Plaintiffs' main objection to defendant's establishment is that it would have such a depressing effect upon the members of the family as to impair the comfort and enjoyment of their home and depreciate its value. It is true many cases have upheld similar objections where it is proposed to put a funeral home in a purely residential district. In effect they hold a funeral home in a strictly residential district is a nuisance per se because of the inherent nature of the business, although conducted in an approved manner, without unpleasant odors or disease germs. See Laughlin, Wood & Co. v. Cooney, 220 Ala. 556, 126 So. 864; Leland v. Turner, 117 Kan. 294, 230 P. 1061; Kundinger v. Bagnasco, 298 Mich. 15, 298 N.W. 386, and citations; Streett v. Marshall, 316 Mo. 698, 291 S.W. 494; Jordan v. Nesmith, 132 Okl. 226, 269 P. 1096. We are not in agreement with this view.
However, we think these and similar decisions are not applicable here. The block in which plaintiffs live can hardly be called purely residential. It has been in a state of transition from residential to commercial use. A filling station and commercial garage are now located there. Block 17 is not restricted by ordinance to residences. The main business district has expanded to within a block of the intersection in question. In the block adjoining on the east is a Catholic church where many funerals are held and in the far corner is an established funeral home.
A number of courts have refused to enjoin establishment of a funeral home in a location close to the business district or in a state of transition from residences to commercial uses. White v. Luquire Funeral Home, 221 Ala. 440, 129 So. 84; Fentress v. Sicard, 181 Ark. 173, 25 S.W.2d 18; Moss v. Burke & Trotti, 198 La. 76, 3 So. 2d 281; Dutt v. Fales, 250 Mich. 579, 230 N.W. 948; O'Malley v. Macken, supra, 182 Minn. 294, 234 N.W. 323; Meldahl v. Holberg, 55 N.D. 523, 214 N.W. 802; Linsler v. Booth Undertaking Co., 120 Wash. 177, 206 P. 976. See also *732 Kirk v. Mabis, 215 Iowa 769, 246 N.W. 759, 87 A.L.R. 1055, where we refused to enjoin a funeral home in a district zoned for commercial purposes although residences were apparently close by.
The statutory definition of nuisance in Minnesota and in North Dakota is almost identical with our section 657.1, Codes, 1946, 1950, I.C.A.
The mere fact the location of the funeral home would depreciate the value of plaintiffs' property for residence purposes does not entitle them to relief. O'Malley v. Macken, supra, 182 Minn. 294, 234 N.W. 323; 39 Am.Jur., Nuisances, section 28; 46 C.J., Nuisances, section 56. Location near them of any one of numerous lawful businesses might depreciate the value of their property. Any increase in automobile traffic which would result from operation of the new home is clearly insufficient basis for injunctive relief.
As stated, undertaking is a lawful and necessary business. There must be some place where a funeral home may properly be located in a city. For various reasons the heart of the business district is hardly an appropriate place. It should not be necessary for friends to go to the outskirts of the city to pay their respects to one deceased. It would seem, in the absence of municipal restrictions, a carefully conducted funeral home may properly be located near the edge of an area that is being invaded by business, where defendant seeks to establish this one. It is to be inferred from the evidence, indeed it is a matter of common knowledge, that numerous funeral homes in various cities and towns of this state are located in comparable places.
Injunctions are granted sparingly, with caution and only in clear cases. A threatened nuisance will be enjoined only where it clearly appears a nuisance will necessarily result from the thing it is sought to enjoin. Amdor v. Cooney, Iowa, 43 N.W.2d 136, 137, 141, and citations. See also Dutt v. Fales, supra, 250 Mich. 579, 230 N.W. 948, 949; White v. Old York Road Country Club, supra, 322 Pa. 147, 185 A. 316, 318. After careful consideration we feel this is not such a case.
Reversed.
BLISS, OLIVER, SMITH, MANTZ, and HAYS, JJ., concur.
HALE and WENNERSTRUM, JJ., dissent.
MULRONEY, J., takes no part.
WENNERSTRUM, Justice (dissenting).
I respectfully dissent from the majority opinion. However, I desire to express my disapproval of it.
1. The case of Bevington v. Otte, 223 Iowa 509, 273 N.W. 98, 102, should be, and in my opinion is, controlling in the case here reviewed. But the majority opinion states it is not. I believe it should not be distinguished.
The Bevington v. Otte case was decided by this court in 1937 and has not been questioned since that time. It was therein stated: "* * * we see no justification whatever for the defendants' attempt to intrude a commercial enterprise into this purely residential neighborhood and subject its residents not only to a loss in the value of their respective properties, but also to the annoyance to the peace and enjoyment of their homes, and possible detriment to their health, which must result if the defendants succeed in what they are attempting to do."
However, this court inferentially overrules this last referred to case. It should do so positively for its holding amounts to a change of attitude on the part of this court. The majority opinion states that the distinction between the Bevington case and the present one is that in the former case the proposed funeral home was in a definite residence district while in the instant case the proposed funeral home site, even though in a residential district, is near an area changing in part from residential to commercial. The facts commented upon and emphasized are that plaintiff's residence property is in a commercially zoned district. It does not give consideration to the fact that the proposed site is in a residential district. The majority opinion seems to find some solace and justification *733 in the fact that the proposed funeral home is to be soundproofed. If the business to be carried on in the proposed building is not in its very nature a nuisance in the selected location why would it need to be made soundproof at all and that fact commented on in the majority opinion? However, it cannot be denied that the site of the proposed funeral home is in a definite residential district. In fact the majority opinion cites with approval many cases which hold that a funeral home in a strictly residential district is a nuisance because of the very nature of the business. It even states and cites authorities for the following statement: "When it is sought to establish a funeral home in a purely residential district it is held by many decisions to be a nuisance." This statement would give support to an affirming opinion.
It is to be presumed that the writer of the opinion in the Bevington v. Otte case, Donegan, J., gave careful consideration to its preparation. It is also to be presumed that the members of this court who joined in it were satisfied that it expressed what they thought was good law. The three members of the court who did not join in the opinion did not file or indicate a dissent. Yet the majority of the present court see fit to file what amounts to an overruling opinion. The statement made by Mr. Justice Roberts in his dissenting opinion in Smith v. Allwright, 321 U.S. 649, 666, 64 S. Ct. 757, 766, 768, 88 L. Ed. 987, 151 A.L.R. 1110, can be advisedly quoted here.
"* * * This tendency, it seems to me, indicates an intolerance for what those who have composed this court in the past have conscientiously and deliberately concluded, and involves an assumption that knowledge and wisdom reside in us which was denied to our predecessors. * * *
"It is regrettable that in an era marked by doubt and confusion, an era whose greatest need is steadfastness of thought and purpose, this court, which has been looked to as exhibiting consistency in adjudication, and a steadiness which would hold the balance even in the face of temporary ebbs and flows of opinion, should now itself become the breeder of fresh doubt and confusion in the public mind as to the stability of our institutions."
II. The citation of Iowa opinions by courts of other states gives an indication of their approval of the holdings of our court. It gives a merited recognition. The Bevington v. Otte case has been recognized as one of the leading cases on the subject matter here discussed. In the case of Brown v. Arbuckle, California, 1948, 88 Cal. App. 2d 258, 198 P.2d 550, 551 it is stated: "While some courts hold that an undertaking parlor or funeral home in a residential district is not a nuisance, the more recent trend of authority is clearly to the contrary. Bevington v. Otte, 1937, 223 Iowa 509, 273 N.W. 98." This Iowa case is also cited with approval in Williams v. Montgomery, 1939, 184 Miss. 547, 186 So. 303, 304. If our opinions are to be cited by courts of other states it will be by reason of the belief that they will, with consistency, adhere to a previous well thought out holding. They should be considered as established precedents.
III. The majority opinion cites several cases that support the holding that the granting of a permit does not authorize the establishment of a nuisance. Two Pennsylvania cases are cited which hold that the issuance of a permit is a proper matter to consider but is not conclusive. This statement is made in the face of a previous comment in the opinion that "The permit did not and could not authorize a nuisance. A court of equity may properly determine the question of nuisance even though the permit was issued." It would appear that there is an apparent variance in these two statements in the majority opinion. A further holding not cited by the majority to the effect that the erection and presence of a funeral home in a residential district could and should be enjoined even though a permit has been granted is found in Jones v. Chapel Hill, 273 A.D. 510, 77 N.Y.S.2d 867, 870.
IV. It is not denied in the majority opinion that a funeral home in a strictly residential district is a nuisance because of the inherent nature of the business and although conducted in an approved manner *734 without unpleasant odors or disease germs. Cases are cited in that opinion in support of such a statement. This holding is substantiated by innumerable authorities. In the annotations found in 87 A.L.R. 1062 it is stated in the text as follows: "The greater weight of recent authority is to the effect that the establishment and operation of an undertaking business in a purely residential section, under circumstances which would cause a depressed feeling to the families in the immediate neighborhood, and a constant reminder of death, appreciably impairing their happiness, or weakening their power to resist disease, and depreciating the value of their property, constitutes a nuisance." In 54 Am.Jur., 512, 513, "Undertakers and Embalmers", Section 7, a statement to the same effect is made.
It is also stated in Cooley on Torts, 4th Ed., 1932, Volume 3, p. 180, sec. 435 as follows: "* * * By what appears to be the weight of modern authority, however, it is held that the location of such a business in a residential district is sufficiently objectionable to make it a nuisance. Thus it has been stated: The inherent nature of an undertaking establishment `is such that, if located in a residential district, it will inevitably create an atmosphere detrimental to the use and enjoyment of residence property, produce material annoyance and inconvenience to the occupants of adjacent dwellings, and render them physically uncomfortable, and in the absence of a strong showing of public necessity, its location in such a district should not be permitted over the protests of those who would be materially injured thereby.'"
My research, as well as that of others, shows that the appellate courts in the majority of the states which have passed on the question have opinions wherein the facts and the law therein announced justify the statements previously quoted. They are: Alabama, Arkansas, Connecticut, Georgia, Indiana, Kansas, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New York, North Dakota, Oklahoma, South Carolina, Texas, Virginia, Washington, and Wisconsin.
The cases which support this reasoning by states are: Higgins v. Bloch, 1925, 213 Ala. 209, 104 So. 429 (funeral home within residential district); Higgins & Courtney v. Bloch, 1930, 216 Ala. 153, 112 So. 739 (where even with encroachment of business court held injunction should issue); Laughlin, Wood & Co. v. Cooney, 1930, 220 Ala. 556, 126 So. 864; White v. Liquire Funeral Home, 1930, 221 Ala. 440, 129 So. 84 (injunction denied where there were other commercial enterprises within block or fronting on same street); Fentress v. Sicard, 1930, 181 Ark. 173, 25 S.W.2d 18; Brown v. Arbuckle, 1948, 88 Cal. App. 2d 258, 198 P.2d 550 (injunction granted where proposed funeral home would be in residence district; also held case of Dean v. Powell Undertaking Co., 1921, 55 Cal. App. 545, 203 P. 1015 not controlling as it was decided on pleadings and facts not applicable); Jack v. Torrant, 1950, 136 Conn. 414, 71 A.2d 705; McGowan v. May, 1938, 186 Ga. 79, 196 S.E. 705 (holding under Georgia practice that proposed undertaking business in residential district should be temporarily enjoined until case could be heard by jury, following Harris v. Sutton, 1929, 168 Ga. 565, 148 S.E. 403); Albright v. Crim, 1933, 97 Ind.App. 388, 185 N.E. 304 (funeral home in residential section enjoined); Reiser v. Osborn, 1944, 114 Ind.App. 617, 53 N.E.2d 545 (funeral home in residential district enjoined even though 400 feet from plaintiff's residence and view partially obstructed); Leland v. Turner, 1924, 117 Kan. 294, 230 P. 1061; Hatcher v. Hitchcock, 1929, 129 Kan. 88, 281 P. 869; Weinmann v. Miles, 1931, 134 Kan. 107, 4 P.2d 437; Fink v. Smith, 1934, 140 Kan. 345, 36 P.2d 976; Osborn v. City of Shreveport, 1918, 143 La. 932, 79 So. 542, 3 A.L.R. 955, but see Moss v. Burke & Trotti, Inc., 1941, 198 La. 76, 3 So. 2d 281; Lewis, Inc., v. Baltimore, 1933, 164 Md. 146, 164 A. 220; Saier v. Joy, 1917, 198 Mich. 295, 164 N.W. 507, L.R.A.1918A, 825; Dillon v. Moran, 1926, 237 Mich. 130, 211 N.W. 67 (where it is shown that business outside of residential district had reached it injunction issued to enjoin establishment of funeral home); Kundinger v. *735 Bagnasco, 1941, 298 Mich. 15, 298 N.W. 386; City of St. Paul v. Kessler, 1920, 147 Minn. 124, 178 N.W. 171; Meagher v. Kessler, 1920, 147 Minn. 182, 179 N.W. 732, but see O'Malley v. Macken, 1931, 182 Minn. 294, 234 N.W. 323 (where it is shown that there is a hotel within block and numerous rooming houses); Williams v. Montgomery, 1939, 184 Miss. 547, 186 So. 302; Davis v. Holmes, 1940, 189 Miss. 554, 198 So. 25 (where in area of eight city clocks are about 75 residences and two small grocery stores and small delicatessen shop held essentially residential in character and funeral home enjoined); Smith v. Fairchild, 1942, 193 Miss. 536, 10 So. 2d 172 (where it is held that location of ice plant, gas station and small grocery store within 1000 feet of undertaking establishment did not change residential character of district and prevent issuance of injunction); Tureman v. Ketterlin, 1924, 304 Mo. 221, 263 S.W. 202, 43 A.L.R. 1155 (funeral home enjoined even though district was in state of transition where shown essentially residential); Street v. Marshall, 1927, 316 Mo. 698, 291 S.W. 494 (where, as shown in the instant case, embalming would be done at another place of business and bodies brought to funeral home and it would constitute a mortuary chapel held that such home in a residential district where reminder of death affected plaintiffs it should be enjoined); Clutter v. Blankenship, 1940, 346 Mo. 961, 144 S.W.2d 119; Beisel v. Crosby, 1920, 104 Neb. 643, 178 N.W. 272 (where although it is shown garage is within 1½ blocks, 2 blocks of filling station and 3 blocks of a grocery yet district essentially residential and use of property for funeral home enjoined); Arthur v. Virkler, 1932, 144 Misc. 483, 258 N.Y.S. 886; Sweet v. Campbell, 1940, 282 N.Y. 146, 25 N.E.2d 963; Meldahl v. Holberg, 1927, 55 N.D. 523, 214 N.W. 802; Jordan v. Nesmith, 1928, 132 Okl. 226, 269 P. 1096 (where it was held that use of funeral home in a residential district should be enjoined where it materially detracts from the comfort and happiness of those who dwell nearby); Fraser v. Fred Parker Funeral Home, 1942, 201 S.C. 88, 21 S.E.2d 577 (held that where operation of funeral home caused depressed feeling, impaired happiness of near neighbors in residential area it should be enjoined. Dissenting opinion filed); Blackburn v. Bishop, Tex.Civ.App., 299 S.W. 264; Bragg v. Ives, 1927, 149 Va. 482, 140 S.E. 656; Densmore v. Evergreen Camp, 1910, 61 Wash. 230, 112 P. 255, 31 L.R.A.,N.S., 608, Ann.Cas.1912B, 1206 (Linsler v. Booth Undertaking Co., 1922, 120 Wash. 177, 206 P. 976, distinguishes last cited case); Goodrich v. Starrett, 1919, 108 Wash. 437, 184 P. 220; Haan v. Heath, 1931, 161 Wash. 128, 296 P. 816 (which distinguishes Rea v. Tacoma Mausoleum Ass'n, 1918, 103 Wash. 429, 174 P. 961, 1 A.L.R. 541); Cunningham v. Miller, 1922, 178 Wis. 22, 189 N.W. 531, 23 A.L.R. 739.
Courts of states which hold contrary to the holdings heretofore set forth are: Kentucky, New Jersey and Oregon. The cases from these states are: Pearson & Son v. Bonnie, 1925, 209 Ky. 307, 272 S.W. 375, 43 A.L.R. 1166; Wescott v. Middleton, 1887, 43 N.J.Eq. 478, 11 A. 490; Stoddard v. Snodgrass, 1925, 117 Or. 262, 241 P. 73, 43 A.L.R. 1160.
See also O'Malley v. Macken, 1931, 182 Minn. 294, 234 N.W. 323 (where it is shown that in a block in question in Rochester there is a hotel and numerous boarding houses); also Koebler v. Pennewell, 1906, 75 Ohio St. 278, 79 N.E. 471 (where statutory definition and interpretation of word "morgue" was involved); O'Connor v. Ryan, 1942, Tex.Civ.App., 159 S.W.2d 531 (where business in area is shown injunction denied); Dutt v. Fales, 1930, 250 Mich. 579, 230 N.W. 948 (injunction denied where funeral home was in semi-industrial and residential district).
In spite of the predominately greater number of supporting authorities which hold under evidence similar to that presented in the instant case that a funeral home in an exclusive residential district should be enjoined, the majority opinion finds it possible to hold otherwise and to inferentially overrule our case of Bevington v. Otte, supra. This dissent therefore endeavors to express my disapproval of this disregard for precedents. *736 The majority opinion seeks to obtain support for its holding by citing our case of Kirk v. Mabis, 215 Iowa 769, 246 N.W. 759, 762, 87 A.L.R. 1055. The majority opinion fails to state that the cited case was decided as it was because the funeral home was in a commercially zoned district. The concluding sentence of that opinion is: "The property upon which he is operating his business being designated as a commercial district, it is a proper and fit place for a funeral home, and the judgment and decree of the lower court was proper, and it is hereby affirmed." In the present case the proposed funeral home is not in a commercial district but in a residential district.
V. The evidence in the instant case discloses that the presence of the funeral home at the contemplated site would have a detrimental effect on the mental state of the neighbors. This conclusion is confirmed by substantiating testimony. The rule is that the determining factor must be whether or not the presence of a funeral home in a residential section would so affect a normal and ordinary person. Smith v. Fairchild, 193 Miss. 536, 10 So. 2d 172-174; Jack v. Torrant, 136 Conn. 414, 71 A.2d 705, 710; Jones v. Chapel Hill, Inc., 273 A.D. 510, 77 N.Y.S.2d 867; Albright v. Crim, 97 Ind.App. 388, 185 N.E. 304. This has been adequately shown.
VI. The majority opinion, in its closing paragraph, comments on the fact that injunctions should be granted sparingly and only where it appears a nuisance will necessarily result from the thing sought to be enjoined. The evidence, in my opinion, definitely shows a nuisance will result. The majority opinion even admits that a funeral home is generally considered a nuisance in a residential district. I think the statement made in 39 Am.Jur. p. 420, section 152, "Nuisance" can be appropriately quoted in refuting the statements made in the majority opinion just referred to. It is as follows: "* * * And if it is shown that there is a reasonable and just ground to apprehend the establishment of a nuisance threatened by the defendant, which he has power to commit, and it is reasonably certain that the health and comfort of those complaining will be disturbed by the threatened act, the writ will issue."
I would affirm the trial court and thus give support to our previously expressed holding. Thus we would give evidence of the stability of our opinions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624582/ | 43 N.W.2d 624 (1950)
153 Neb. 36
BASKINS
v.
KREPCIK et al.
No. 32785.
Supreme Court of Nebraska.
July 13, 1950.
*626 Baskins & Baskins, North Platte, for appellant.
Beatty, Clarke, Murphy & Morgan, of North Platte, W. S. Padley, of Gothenburg, for appellees.
Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
BOSLAUGH, Justice.
This is a suit to partition land in Lincoln County. Demurrers to the petition were sustained on the ground that a cause of action for involuntary or compulsory partition was not shown because of the existence of a life estate in the whole of the land. Appellant elected not to plead further, and the case was dismissed. The appeal is from the judgment of dismissal.
Emil F. Krepcik is the owner of a life estate in the land. Appellant is the owner of a part of the land subject to the life estate. Appellees Joseph F. Krepcik, Anna M. Bloomenkamp, Emil E. Krepcik, Edward R. Krepcik, Louis W. Krepcik, Louisa C. Pavelka, Grace Ringenberg, and Violet Krepcik, are the owners of the balance of the land subject to the life estate.
Grace M. Krepcik was the owner of the land, and it was occupied by her and her husband, Emil F. Krepcik, as their homestead at the time of her death. The appellees, except Violet Krepcik, are their children. Calvin L. Krepcik was their son. He died after the death of his mother and left surviving him Violet Krepcik, his widow, and Emil F. Krepcik, his father, as his only heirs. Emil F. Krepcik conveyed to appellant all his interest in the land except his life estate.
The owner of the life estate has not objected to partition. He defaulted on October 18, 1949. The effect of this is he disregards the lawsuit and, so far as he is concerned, the allegations of the petition may be accepted as true, including the statement that he has a life estate in all the land. Danbom v. Danbom, 132 Neb. 858, 273 N.W. 502. It is not claimed that there has been a waiver, release, or extinguishment of the life estate, or that the owner thereof has elected to have or permit partition of the land. If he had, the life estate or "homestead right of the survivor" would have terminated. Section 40-117, R.S.Supp., 1949; Metzger v. Metzger, 108 Neb. 613, 188 N.W. 229.
Appellant and appellees are common owners in fee of a vested remainder in the land. Their estate is subject to the life estate of Emil F. Krepcik, an estate in possession in the whole of the land. The problem of this appeal may thus be stated: Can a remainderman in fee of an undivided interest in real property maintain a suit for partition thereof against the owners of the remaining undivided interest in remainder, the whole premises being subject to a life estate in another? Independently of statute, a suit in partition may not be maintained *627 by one whose undivided estate is in remainder only. 40 Am.Jur., Partition, § 111, p. 95; 47 C.J., Partition, § 49, p. 289, § 175, p. 341; Freeman on Cotenancy & Partition, § 440, p. 534; 2 Tiffany Real Property, 3d Ed., § 475, p. 312. The case of appellant therefore must prevail, if at all, upon statutory authorization.
The legislation on the subject of partition is significant. The territorial laws provided that: "When the object of the action is to effect a partition of real property among several joint owners, the petition must describe the property and the respective interests of the several owners thereof, if known." Title 26, p. 538, R.S.1866 (§ 802, Code of Civil Procedure). Nebraska became a state March 1, 1867, and the territorial laws became the laws of the state. Title 26, p. 538, R.S.1866. The Legislature of Nebraska of 1871 amended this section as follows: "When the object of the action is to effect the partition of real property among several joint owners, the petition must describe the property, and the respective interests and estates of the several owners thereof, if known. All tenants in common, or joint tenants of any estate in land, may be compelled to make or suffer partition of such estate or estates in the manner hereinafter prescribed." Laws 1871, § 1, p. 112. Section 802 of the original code has become section 25-2170, R.R.S.1943, and it is the identical language of the amendment of 1871 except the words "several interests" have been substituted for "respective interests" in the first sentence, and the words "several joint owners" are used in place of "several owners" where they last appear in the first sentence.
The statute before the amendment of 1871 did not provide who was qualified to maintain an action for partition of real estate. The common law conferred this remedy upon joint tenants, tenants in common, owners of estates for life or years, and owners of estates in which some of the cotenants held for term of life or years and others held estates of inheritance. A prerequisite was an estate in possession, and none but parties having such estates were bound by the judgment, but the partition did not affect estates in remainder or contingency. Tenants of estates in remainder were not permitted to interfere with tenants in possession, but tenants in possession had power to compel partition confined to their particular estates but could do nothing towards effecting a severance of estates in remainder or reversion. It was the rule at common law and under the English statutes that estates of remainder or reversion could not be divided by proceedings for compulsory partition. Freeman on Cotenancy & Partition, § 439, p. 532; § 440, p. 534; 2 Tiffany Real Property, 3d Ed., § 476, p. 315. The common law applies in this state except as abrogated by statute or modified by decision of court. C. VII, § 1, p. 31, R.S.1866; section 49-101, R.S.1943; In re Estate of Lewis, 148 Neb. 592, 28 N.W.2d 427.
It is presumed that the Legislature of 1871 knew the limitations and conditions of partition as imposed by the common law, including the requirement of possession or right of possession, when it by the the exercise of its powers changed the law by an amendment thereof. In this situation it provided in simple clear language that all tenants in common or joint tenants of any estate in land may be compelled to make or suffer partition of such estate. It did not resort to any words of technical meaning indicating quality or kind of an estate owned by tenants in common or joint tenants, such as an estate in land held by them or all tenants in common or joint tenants who hold any estate in land. The words "held" or "hold" when used in reference to interest entitling an owner to partition imply a tenant of a freehold and have been construed as denoting an estate of present possession. Smith v. Gaines, 39. N.J.Eq. 545; Allnatt on Partition, p. 53. The Legislature used only the words any estate in land. It has not been decided during the more than three quarters of a century since the amendment of this statute that ownership of a freehold estate was indispensable to a resort to the remedy of partition of real estate. This is conceded by counsel for the contending parties. It has been determined that "when there is an *628 outstanding estate for life, vested in a third person, in the whole of the premises of which partition is sought, a remainderman cannot maintain an action in partition over the objection of the holder of the life estate." Weddingfeld v. Weddingfeld, 109 Neb. 729, 192 N.W. 227. See, also Bartels v. Seefus, 132 Neb. 841, 273 N.W. 485, These cases presented an attempt to force partition of the whole of the real estate involved, including the life estate, against the objection and desire of the life tenant. Plaintiff in either case did not seek partition of a vested remainder owned in common by the plaintiff and others without disturbing the life estate. The court did not decide that the owner of a vested remainder cannot in a proper case maintain partition with the consent of the life tenant or where the life tenant is a party to the case and makes no objection. The limitation in those cases is that a remainderman cannot partition the whole property when the owner of a life estate objects to his estate being disturbed. An important fact in this case is that the life tenant does not make objection to the remedy or any relief asked by appellant, and the record shows no reason for denying his right to resort to the remedy of partition or for denying the relief.
The partition statute requires that the petition allege the several interests and estates of the several owners of the property and if it is supposed there are any interests unknown, contingent, or doubtful, the facts in reference thereto shall be set out. All persons having any interest contingent or otherwise must be parties and the proceeds of the property so situated are subject to the order of the court until the right becomes vested. When the shares and interests are settled, judgment shall be rendered confirming them and making partition accordingly either in kind or by sale to prevent prejudice to the owners, and when jurisdiction of the parties in interest exists, the proceedings are conclusive upon all of them. Section 25-2170 et seq., R.R.S.1943. This is indicative of great change in the law of partition from what it was at common law. It is well discussed in Scoville v. Hilliard, 48 Ill. 453, in this language: "The petition in this case conforms to the statute, and the question very naturally arises, why should tenants for life be made parties to the petition, if there rights were not to be adjudicated by the court? We can perceive no reason for it, and the statute no where intimates that the petitioner claiming an interest in the premises, shall be entitled to the possession thereof, at the time he presents his petition for partition. It is sufficient if he discloses he has such an interest as specified in the statutethat he is a tenant in common, or joint tenant, or a coparcener, and what interest the defendant is supposed to have in the same, and it would seem, though that interest may be a life estate, as in this case, the same is to be subject to the action of the court in the proceeding. * * * It is insisted by appellees, that inasmuch as the appellants do not show they were entitled to the possession of the premises, the proceeding cannot be sustained. Now, there is not a word in the statute requiring this should be shown."
Sections 9238, 9258, and 9261, Comp.St.1922, are now respectively sections 25-2170, 25-2190, 25-2193, R.R.S.1943. The court considered these in Weddingfeld v. Weddingfeld, supra, and said: "When these sections [Sections 9258 and 9261, C.S.1922] are read in connection with 9238 they cannot be construed to confer upon the remainderman the right to force partition upon the holder of the life estate. Section 9261, upon which chief reliance is placed, does not authorize the court to ascertain the value of the life estate, and pay it over to the holder of the life estate, but, on the other hand, it directs the court to have the entire fund created by the sale invested, `and the proceeds to be paid to the incumbrancer during the existence of the incumbrance.' It is clear, we think, that the provisions of the last two mentioned sections are meant only to apply, first, to cases where there is an ordinary incumbrance, such as a mortgage; and, second, where there is an estate for life or for years and the holder of such estate voluntarily submits to the partition, but, having gone thus far, fails to agree with the other parties in interest upon the value of the life estate. *629 In that event the court orders the investment of the entire amount realized from the sale."
It is argued that it would be unjust and injurious to the appellees to have a partition while the life estate exists. This is not convincing or controlling. It is conceivable that a present sale of the remainder might be more advantageous than a sale after the termination of the particular estate. A denial of partition might on the other hand be injurious and unjust to appellant. In Scoville v. Hilliard, supra, the court said: "It may be very important to one holding such an estate with another holding the same kind of an estate, that their particular interests should be set off and allotted to them, or if not capable of being so done without prejudice, that such interests should be sold. An undivided interest in property is not so secure as a separate one, and every such proprietor desires to know certainly what he does own, and so long as the owner of the life estate is not affected by the proceedings, we see no reason why that interest should be an obstacle in the way of a partition between those owning the fee as reversioners." See, also, Heintz v. Wilhelm, 151 Minn. 195, 186 N.W. 305. A right of partition given by law is imperative and absolute and is not a matter of grace. Whether the result is injurious or beneficial is not a legal consideration. Windle v. Kelly, 135 Neb. 143, 280 N.W. 445.
It has been said, as it is contended in this case, that an important, if not the primary, purpose of partition was to avoid or relieve against the dissatisfaction and inconveniences of possession by more than one person of the identical thing. This is a disputed subject. 2 Tiffany Real Property, 3d Ed., § 476, p. 317, discusses it as follows: "In asserting the inability of one having undivided interest in remainder upon a life estate to demand a partition, it is occasionally said that one who has not an estate in possession cannot maintain the proceeding, for the reason that the purpose of the proceeding is to sever the possession. This, however, appears to be questionable. It has been decided in several cases that the existence of an outstanding estate for years, whether this is by reason of a lease by one cotenant to the other, or by reason of a lease to a stranger, does not affect the right to demand partition, and this accords with the common-law authorities. The purpose of the proceeding at common law appears to have been to obtain a division of the freehold, that is, of the seisin, for which reason an estate less than freehold was entirely disregarded, and the above decisions would suggest that such is still the purpose of the proceedings, rather than the severance of the possession."
A discussion of partition of future interests in property in the Restatement of the Law makes reference to three classes of statutes, as follows: "Class 1 consists of those statutes under which the power to compel partition exists only in persons who own `present interests,' and this phrase, for historical reasons, includes persons who have estates of freehold * * * subject to outstanding estates for years. * * * Class 2 consists * * * of statutes which empower a joint tenant or tenant in common in an unconditional and indefeasible future interest to compel partition of the future interest thus held in co-ownership, under some one or more of four defined and restricted sets of circumstances. * * * Class 3 consists of those statutes which, in general, empower any joint tenant or tenant in common in an unconditional and indefeasible future interest to compel partition of the future interest thus held in co-ownership. Under this variety of statute the power is much less qualified and restricted than under the varieties of statute grouped as Class 2." Restatement, Property, c. 11, pp. 656, 657. It is also said therein: "(1) When a future interest in land is owned in a joint tenancy or in a tenancy in common, then a concurrent owner in such future interest has power to compel partition thereof when the requirements of all the Clauses of Subsection (2) are satisfied. (2) The prerequisites for the existence of the power stated in Subsection (1) are the following: (a) the state wherein the affected land is located has a statute which, in specific words, confers the power to compel partition on a joint tenant or tenant in common in a `reversion or remainder,' or in a *630 `vested remainder or reversion,' or in `an interest or estate in land,' or which employs other language of like import; and (b) the joint tenant or tenant in common, in exercising such power, complies with all requirements specified by such statute as to matters other than the prerequisite variety of future interest; and (c) the creator of the concurrently owned future interest has not manifested effectively an intent that no such power to compel partition be present * * *; and (d) the future interest of such joint tenant or tenant in common is a future estate in fee simple absolute not subject to a condition precedent." Restatement, Property, § 175, pp. 676, 677.
A statute of Illinois provides: "* * * when land, tenements or hereditaments are held in joint tenancy, tenancy in common or co-parcenary, * * * any one or more of the persons interested therein may compel a partition thereof * * *." Ill.Anno. St. c. 106, § 1, p. 610; Laws 1935, § 1, p. 1054. This statute is no more comprehensive than the Nebraska statute. There could hardly be less qualified or less restrictive language than that used in the statute of this state "any estate in land." The Illinois statute has been construed to permit the owner of an undivided interest in a vested remainder, subject to a life estate in the whole of the premises, to demand partition. A case to this effect, often referred to, is Scoville v. Hilliard, supra. The petition in that case showed that appellants and appellees were the owners in fee by undivided interest in the premises and the whole thereof was subject to a life estate therein. A demurrer to the petition was sustained and the suit dismissed. The contention was that a remainderman in fee of an undivided interest in real estate could not maintain a suit for partition thereof against the owners of the remaining undivided interest in remainder, the whole premises being subject to a life estate in another. The court observed that there was not a word in the statute requiring a person demanding partition to show that he was entitled to the possession of the premises. It is said in that case: "A remainderman, or reversioner in fee, of an undivided interest in property, may maintain a suit for partition, against the owner of the remaining undivided interest in remainder, the whole premises being subject to a life estate unexpired. * * * In order to maintain a suit for partition, our statute does not require that the petitioner claiming an interest in the premises should be entitled to the possession thereof. It is enough, if he discloses such an interest as the statute specifiesthat he is a tenant in common, or joint tenant, or a co-parcener, and what interest the defendant is supposed to have in the same."
In Cummins v. Drake, 265 Ill. 111, 106 N.E. 456, 457, the court said: "Appellant being the remainderman of an undivided interest in this property is entitled to maintain a suit for partition against the owners of the remaining undivided interests in remainder, and this is true although the whole premises are subject to a life estate which is unexpired. Scoville v. Hilliard, 48 Ill. 453; Drake v. Merkle, 153 Ill. 318, 38 N.E. 654. Partition among remaindermen does not necessarily affect the estate of a life tenant, as the remainder, if not divisible, may be sold without the life estate and the proceeds divided, or, if the life tenant consents, the whole estate may be sold. Drake v. Merkle, supra." See, also, Voellinger v. Kirchner, 314 Ill. 398, 145 N.E. 638; Wells v. Dalies, 318 Ill. 301, 149 N.E. 279; Thomas v. Stoakes, 328 Ill. 115, 159 N.E. 269; Gahan v. Golden, 330 Ill. 624, 162 N.E. 164; Tilton v. Tilton, 382 Ill. 426, 47 N.E.2d 454.
The Minnesota statute provides: "When two or more persons are interested, as joint tenants or as tenants in common, in real property in which one or more of them have an estate of inheritance or for life or for years, an action may be brought by one or more of such persons against the others for a partition thereof according to the respective rights and interests of the parties interested therein, * * *." Minn.S.A., § 558.01, p. 124. In Heintz v. Wilhelm, supra, it was by the court concluded that: "Under our statute a cotenant in the remainder may compel partition although the life tenant is in possession of the property. * * * Where there is an estate in severalty for life or years in the property to be partitioned, the partition, whether in kind or by *631 sale, should be made subject to such estate unless it be clearly shown that a due regard for the interest of all parties requires that the precedent estate be included therein." It is further said therein: "At common law a cotenant could not compel a partition of the land unless he was entitled to the present possession of it as a cotenant, and hence he could not enforce a partition where his estate was subject to a life estate, as the life tenant was entitled to possession. Our statute has changed this rule; * * *. If, in making a partition, the land is to be sold and the proceeds divided, and there is an estate for life or for years in the whole or any part of it, the sale may be made subject to such estate; `but if, in the judgment of the court, a due regard for the interest of all the parties requires that such estate be sold, the sale may be so ordered.' G.S.1913, § 8052. * * * Estates for life or years in severalty may be included in the sale under our statutes when a due regard for the interest of all parties requires it." See, also, Rekovsky v. Glisczinski, 170 Minn. 303, 212 N.W. 595.
This court in Oliver v. Lansing, 50 Neb. 828, 70 N.W. 369, said concerning the Illinois statute above referred to that it was held by the Illinois court that as the statute contained nothing requiring that the applicant should have an estate entitling him to be in possession, and as it clearly contemplated bringing before the court the owner of the life estate, it must be construed as authorizing a reversioner or remainderman to maintain a suit for partition against the owner of the remaining undivided interest in reversion or remainder, although the whole premises were subject to a life estate. The court made reference to Scoville v. Hilliard, supra, and Hilliard v. Scoville, 52 Ill. 449. It was also said therein that a like construction was given a similar statute in Minnesota. Cook v. Webb, 19 Minn. 167. This court then significantly observed that the conclusion reached by the courts of Illinois and Minnesota was "in each instance influenced by a statute much resembling our own * * *." [50 Neb. 828, 70 N.W. 373]
The statute of Missouri on this subject is to the effect that "where lands, tenements or hereditaments are held in joint tenancy, tenancy in common, or coparcenary, * * any one or more of the parties interested therein * * * to file a petition in the circuit court of the proper county, asking for * * * partition * * *." Section 7132, R.S.1889, Mo.R.S.A. § 1709.
In Hayes v. McReynolds, 144 Mo. 348, 46 S.W. 161, 163, the court referred to this statute and said: "The statute quoted authorizes any one owning an interest in real property, though subject to a life estate, dower, or curtesy, to prosecute an action to have his interest partitioned subject to such estate." See, also, Flournoy v. Kirkman, 270 Mo. 1, 192 S.W. 462; Reinders v. Koppelmann, 68 Mo. 482, 30 Am.Rep. 802.
The owner of a life estate in the whole of real estate sought to be partitioned may object to the partition of his estate and in that event the suit may not be maintained; or the owner of the particular estate may consent to the partition of the whole real estate; or if he does nothing in the case, the court may partition the real estate and the life tenant may claim a life estate in the proceeds, and if the interested parties cannot agree on the present value of the life estate, the court may order all of the proceeds of the sale invested and the income paid to the life tenant during his life.
The judgment is reversed and the cause remanded, with directions to the district court to overrule the demurrers to the petition.
Reversed and remanded with directions.
SIMMONS, Chief Justice (dissenting).
I respectfully dissent.
I accept the statement of the majority that the parties here are common owners of a vested remainder in the land involved.
The majority hold that independent of statute a suit in partition may not be maintained by one whose undivided estate is in remainder only. It is also held that it was the rule at common law and under the English statutes that estates of remainder could not be divided by proceedings for compulsory partition. I accept those two *632 holdings. The reason is obvious. A remainderman does not have a right of possession.
The majority hold that when the Legislature in 1871 provided that all tenants in common, or joint tenants of any estate in land, may be compelled to make or suffer partition, it thereby eliminated the requirement that ownership of an estate in possession was a prerequisite to partition; that a remainderman may maintain a suit for partition against his co-owners in remainder; and that the plaintiff is not required to be in possession or have the right of possession in order to maintain partition. There we disagree.
The majority stress the use of the words "any estate in land," but give no particular attention to the preceding words "all tenants in common, or joint tenants of any estate in land." The words "any estate in land" are limited by the preceding words.
Possession is an essential element of tenancy in common or a joint tenancy. 2 Tiffany, Real Property, 3d Ed., § 418, p. 196, § 426, p. 212; 62 C.J., Tenancy in Common, § 5, p. 410; 48 C.J.S., Joint Tenancy, § 1, p. 910. Unity of possession does not exist in the case of co-owners in remainder. 2 Tiffany, Real Property, 3d Ed., § 418, note 5, p. 196. A majority of this court committed this jurisdiction to the principle of possession as an essential element in the creation of joint tenancies in Stuehm v. Mikulski, 139 Neb. 374, 297 N.W. 595, 137 A.L.R. 327. See, also, Anson v. Murphy, 149 Neb. 716, 32 N.W.2d 271. A vested remainder is an estate which is deprived of the right of immediate possession. 2 Tiffany, Real Property, 3d Ed., § 317, p. 15, § 319, p. 20; 33 Am.Jur., Life Estates, Remainders, etc., § 177, p. 643, § 219, p. 703; 31 C.J.S., Estates, § 85, p. 97. A joint tenant or a tenant in common has the right of immediate possession. It follows that when the Legislature gave the right of partition against tenants in common or joint tenants, it did not include those holding vested remainders.
We need not speculate as to the intent and purpose of the Legislature in adopting the 1871 amendment. Reasonable explanations of the intent and purpose are to be found in the books. To determine that intent and purpose we must pursue two inquiries. The one involves an understanding of the rights of joint tenants and tenants in common in the dissolution of such an estate. The other involves an investigation of our constitutional and statutory history of partition and power of courts.
Section 49-101, R.S.1943, provides: "So much of the common law of England as is applicable and not inconsistent with the Constitution of the United States, with the organic law of this state, or with any law passed or to be passed by the Legislature of this state, is adopted and declared to be law within the State of Nebraska."
This act has been on our statutes since territorial days. C. VII, § 1, R.S.1866. In adopting this statute, Nebraska, so far as applicable, adopted the common law of England and not the statutory law of England. Farmers & Merchants Ins. Co. v. Jensen, 58 Neb. 522, 78 N.W. 1054, 44 L.R.A. 861; Brooks v. Kimball County, 127 Neb. 645, 256 N.W. 501.
At common law all joint tenants might agree to make partition of the lands, but one of them could not compel the others so to do. 1 Cooley's Blackstone, 4th Ed., p. 585 (Book II, c. 12, p. 185). Likewise tenants in common were not compelled to make partition of their lands at common law. 1 Cooley's Blackstone, 4th Ed., p. 591 (Book II, c. 12, p. 194).
By statute 31 Henry VIII, c. 1, enacted in 1539, and statute 32 Henry VIII, c. 32, enacted in 1540, joint tenants and tenants in common were compellable to make partition.
The language of statute 31 Henry VIII is: "* * * all joint tenants and tenants in common, that now be, or hereafter shall be, of any estate or estates of inheritance in their own rights, or in the right of their wives, of any manors, lands, tenements or hereditaments * * * shall and may be coacted and compelled, by virtue of this present act, to make partition between them of all such manors, lands, tenements and hereditaments, as they now hold, or hereafter shall hold as joint tenants or tenants in common * * *." (Emphasis supplied.) 31 Henry VIII, c. 1.
*633 The above statute applied to estates of inheritance.
By statute 32 Henry VIII, enacted in 1540, it was provided: "That all joint tenants and tenants in common, and every of them, which now hold, or hereafter shall hold, jointly or in common for term of life, year or years, or joint tenants or tenants in common, where one or some of them have or shall have estate or estates for term of life or years, with the other that have or shall have estate or estates of inheritance or freehold in any manors, lands, tenements or hereditaments, shall and may be compellable from henceforth, by writ of partition * * * to make severance and partition * * *." (Emphasis supplied.) 32 Henry VIII, c. 32. By this later act, joint tenants and tenants in common for life or years were compellable to make partition.
Our statute, section 25-2170, R.R.S.1943, in simpler language, used the "compelled" of the English acts. The Legislature obviously intended to supplement the common law, as did the Parliament, and make partition compellable between tenants in common and joint tenants. Such was the purpose and effect of the amendment in England.
Lewis, in his Blackstone, volume 1, page 655, states in the notes that joint tenants and tenants in common could never sue for partition till the right was conferred on them by statutes 31 and 32 Henry VIII, and these statutes restrict the right to such as are seised. Therefore, a remainderman cannot sue in partition until the death of the life tenant, citing Stevens v. Enders, 13 N.J.Law (1 J. S. Green) 271, 279.
But the majority say that the Legislature did not use the word "held" or any similar word denoting an estate of present possession. My answer to that is twofold. That condition is inherent in the language used. Likewise in all our decisions, hereinafter cited, we have recognized that present possession was an essential requirement to the right to maintain compulsory partition.
We have construed our statute in accord with the English acts.
In Oliver v. Lansing, 50 Neb. 828, 70 N.W. 369, we held: "Where a case is fairly within the law authorizing a partition, the right to partition is imperative, and absolutely binding upon courts of equity. In such a case the right of partition is a matter of right, and not of mere grace." We followed that decision in Arthur v. Arthur, 115 Neb. 781, 215 N.W. 117, and Wilcox v. Halligan, 141 Neb. 643, 4 N.W.2d 750. In Windle v. Kelly, 135 Neb. 143, 280 N.W. 445, dealing with the right of a guardian to maintain partition, we cited first the statutory provision, then Oliver v. Lansing, supra. The statute and our decisions are in accord.
I now turn to the statutory and constitutional situation that existed when the 1871 amendment was passed.
The organic law of the Territory provided for the vesting of the judicial power in a supreme court, district courts, probate courts, and in justices of the peace. It provided that the jurisdiction of probate courts and of justices of the peace "* * * shall be as limited by law: Provided, That justices of the peace shall not have jurisdiction of any matter in controversy when the title or boundaries of land may be in dispute * * *." Organic Law, § 9, p. 4, approved May 30, 1854.
The Legislature in 1855 provided that a judge of probate had jurisdiction of the probate of wills, the administration of the estates of deceased persons, and of the guardianship of minors and insane persons. Laws 1855, Part II, § 37, p. 174. This was in effect continued in 1857. Laws 1857, Part 1, c. XXXV, § 3, p. 118. The same two Legislatures enacted the partition provision which is set out in the majority opinion. Laws 1855, Part 1, § 608, p. 114; Laws 1857, Part 1, c. XXXVI, § 1, p. 120.
The Territorial Legislature in 1858 adopted an act providing that in an action for the recovery of real property it shall be sufficient if plaintiff states that he has a real estate therein and is entitled to the possession thereof and that the defendant keeps him out of possession, and that in an action by a tenant in common of real property against a cotenant, the plaintiff must state, in addition to the above, that the defendant either denies the plaintiff's right or did *634 some act amounting to such denial. Laws 1858, Title XVIII, c. I, §§ 566, 568, p. 205. Possession was thereby recognized as an essential element in the estates of tenancy in common. These provisions are now sections 25-2124 and 25-2126, R.R.S.1943. In the same act (c. III, § 585, p. 207), it was provided that partition under existing statutes might be made until the Legislature otherwise provided.
The Territorial Legislature of 1860 enacted a provision for the partition and distribution of estates. Laws 1860, c. II, p. 101. The first four sections appear to be the lineal ancestors of our present sections 30-1301 to 30-1304, R.R.S.1943. Section 5 and following of the 1860 act provided that when an estate assigned to two or more heirs, devisees, or legatees "shall be in common and undivided," partition may be made by commissioners appointed "by the probate court" and there follows detailed procedural provisions. So that in 1860, the partition of such estates "in common and undivided" was placed in the jurisdiction of the "probate court." This act became a part of the statutes of Nebraska, chapter XIV, section 288, and following. R.S.1866, p. 117.
The 1866 Constitution provided for a supreme court, district courts, probate courts, justices of the peace, and other courts. Judiciary, § 1. It provided in section 4 that probate courts, justices of the peace, and other inferior courts shall not have the power to order or decree the sale or partition of real estate.
In 1870, the Legislature provided that probate courts should not have jurisdiction to order or decree the sale or partition of real estate. Laws 1870-1871, § 1, p. 7. This act was approved February 28, 1870, and was enacted at a session of the Legislature that began February 17, 1870. One year later, at a session of the Legislature that began January 5, 1871, in an act approved March 3, 1871, the Legislature amended section 802 of the then code to provide that "All tenants in common, or joint tenants of any estate in land, may be compelled to make or suffer partition of such estate or estates in the manner hereinafter prescribed." Laws 1870-1871, p. 112.
By this somewhat involved process the Legislature changed the jurisdiction to partition estates held in common or as joint tenants from the probate courts to the district courts. It thereby complied with the constitutional limitation on the jurisdiction of probate courts. It made partition between tenants in common and joint tenants a compellable right.
This is further illustrated by the later history of the act of 1860.
The Legislature amended it in 1873 to provide for the appointment of the partition commissioners "by the district court" and by the use of the words "district court" in several places instead of "probate court" apparently attempted to make the act conform to the constitutional requirement. C. 17, G.S.1873, p. 334 et seq. So at that time we had a general and a special act dealing with partition. The 1881 Legislature solved that difficulty by repealing the special provisions and providing that "When such estate shall consist in part of real estate, and shall descend to two or more heirs, devisees or legatees, and the respective shares shall not be separate and distinguished, partition thereof may be made as provided by law." Laws 1881, c. 50, § 1, p. 234. This provision is now section 30-1305, R.R.S.1943.
The Legislature then, in 1873, completed the transfer of partition jurisdiction in some cases from the probate courts to the district court. In 1881, it removed the special procedure provision. We then had, as we have now, one partition proceeding of general application.
This history brings the statutory changes down to within five years of our first decision construing and applying this statute. Hurste v. Hotaling, 20 Neb. 178, 29 N.W. 299, 301, decided in 1886. It then was current history. If the Legislature of 1871 had intended to make a change in the basic requirements of the law as to possession, it may be assumed that the lawyers of that time would have had knowledge of it. Yet, no indication of such a knowledge appears, *635 in the briefs or in the decision. The writer of the opinion became a member of this court in 1873. The attorneys involved are shown to have been members of this bar in 1883. 14 Neb. iii. The date of their admission is not shown. However, Mr. Davidson is shown to have begun the practice in this state in 1872. History of Nebraska 1882, p. 1012. Judge Appelget began the practice at Tecumseh in 1870. History of Johnson and Pawnee Counties, 1889, p. 164.
We had this statute before us in the Hurste case. Our opinion was rendered 15 years after the 1871 act was passed. We there discussed this statute and said: "The controlling principle in partition, therefore, without regard to the extent or quantity of the interest, is that the parties shall be joint tenants or tenants in common of an estate in the land. Subsequent sections of the statute permit, if they do not require, other persons having particular, qualified, or reversionary interests, such as a tenant for years, in dower, or persons having liens on the land, to be brought in, in order that their rights may be determined in the action. Only joint tenants or tenants in common of an estate in the land, however, can institute the proceedings.
"In Wood v. Clute, 1 Sandf.Ch., [N.Y. 199], 201, the court, in speaking of tenants for years, by the courtesy, or in dower, persons entitled in reversion or remainder, and creditors having liens, says: `These may be made parties to the partition, but there appears to be no authority for their instituting it, unless they are also tenants in common in possession.'" (Emphasis supplied.) We approved this holding in Barr v. Lamaster, 48 Neb. 114, 66 N.W. 1110, 32 L.R.A. 451.
In Seymour v. Ricketts, 21 Neb. 240, 31 N.W. 781, in an opinion by the judge who wrote Hurste v. Hotaling, supra, we held: "A party out of possession of real estate, whose title is denied, cannot maintain an action of partition against one in possession, claiming the title to said land. He must first establish his estate in the land." We followed this decision in McMurtry v. Keifner, 36 Neb. 522, 54 N.W. 844. We construed that opinion in Bell v. Dingwell, 91 Neb. 699, 136 N.W. 1128, 1131, and said "we held" there that partition could not be had until petitioners "had first obtained possession."
In Oliver v. Lansing, supra, we held: "Where real property leased for a term of years is owned by several persons as tenants in common, both of the rents and the reversion, partition upon the petition of one of the tenants in common may be had. and, in case of a sale being thereby rendered necessary, the lessee will become a tenant of the purchaser of the rents and reversion." (Emphasis supplied.)
The majority cite this case for a reference made therein to an analysis made by the Supreme Court of Illinois as to the statute of that state and get comfort from the fact that we said the statutes of Minnesota and Illinois much resembled our own. An analysis of the facts and issues of that case and the decision reached on the cited authorities negatives the conclusion reached by the majority in this case.
In Oliver v. Lansing, supra, the briefs reveal it was contended by the appellants that "A tenant in common of a reversion in land expectant on a lease for years cannot maintain a suit for partition." It was contended by the appellee that "A joint tenant of leased lands, both of the rents and of the reversion, may maintain partition." (Emphasis supplied.) The lawyers involved in that case were not novices at the bar, but rather were then and had been leaders of the bar in this state. It is significant that the appellants did not cite section 802 of the code, now section 25-2170, R.R.S.1943. Appellee quotes the code but makes no further reference to it. The reason is plain.
The appellee contended that "* * * Lansing and Oliver are tenants at the present time not only of the fee or reversion, but of all the present rents and incomes." It was the appellee's contention that Oliver and Lansing had a present possession through the rents and income, and that where that situation existed, partition could be compelled under the statute. We sustained that contention. We did not hold that a present possession was not necessary.
We cited Woodworth v. Campbell, 5 Paige Ch. (N.Y.) 518, wherein it was held *636 that as the parties had a present interest in the rents as tenants in common and also were the owners of the reversion, they had a present partable interest in the premises and partition could be had. This case appears to be the basic case relied on in the other decisions cited by appellee. We also quoted from Freeman, Cotenancy & Partition, § 446, p. 544, that "* * * no person has the right to demand any court to enforce a compulsory partition, unless he has an estate in possession,one by virtue of which he is entitled to enjoy the present rents or possession of the property as one of the cotenants thereof." The next three sentences in Freeman (following our quote in the Oliver case) are: "Therefore, the grantee of a deed in which the grantor reserves the right to remain in possession during his natural life, cannot maintain a suit for a compulsory partition. So it was held that a tenant in common of lands whose moiety was held by a tenant under a lease had no right to demand partition, although the applicant was tenant in common of the rents as well as of the reversion. But probably the weight of the authorities is the other way, and in favor of the rule that, notwithstanding a lease for years, a cotenant both of the rents and of the reversion may call for a partition." (Emphasis supplied.) We followed the majority rule that a cotenant of both the rents and reversion could compel partition. We did not hold that a cotenant of a remainder could do so. In fact we negatived that holding. The authority relied upon (Freeman) in the sentence preceding our quote in the Oliver case states: "Thus a remainderman might be brought before the Court, in certain cases, and compelled to execute a conveyance for the purpose of carrying out a decree of partition; but in no case could he institute proceedings to enforce compulsory partition." (Emphasis supplied.) Freeman, Cotenancy & Partition, § 446, p. 544.
Oliver v. Lansing, supra, is cited in the annotation, 151 A.L.R. 389, as authority for the proposition that "The requirement that those to whom partition is made shall have possession, or the right to possession, is satisfied by holding that the possession of the lessee inures to their benefit." So the Oliver case, when analyzed, does not sustain the position of the majority and is in harmony with our decisions that possession or the right to present possession is required. It is significant that in the briefs in the Oliver case our Nebraska decisions herein quoted are not even mentioned. The cause was submitted and decided upon the rule stated in the syllabus quoted herein, which of itself recognized the requirement of possession. It is likewise significant that neither in the briefs nor in the opinion is there any indication that we were modifying or overruling our own prior decisions, or that we were adopting constructions of other statutes by the courts of other states contrary to the construction we had theretofore put upon our own statute.
We held in Phillips v. Dorris, 56 Neb. 293, 76 N.W. 555, that only a joint tenant or a tenant in common of real estate can maintain an action for its partition. This was followed in Heiser v. Brehm, 117 Neb. 472, 221 N.W. 97. An examination of the brief of appellee in Phillips v. Dorris, supra, reveals that the appellee urged upon this court that the statute here involved did "not provide that the party seeking partition shall be in possession" and that "the issue of possession cannot be used to defeat the right to partition." In the opinion we said: "The object of a partition suit is to assign property, the fee simple title to which is held by two or more persons as tenants, or joint tenants in common, to them in severalty." This was followed in Hoover v. Haller, 146 Neb. 697, 21 N.W.2d 450, and Trowbridge v. Donner, 152 Neb. 206, 40 N.W.2d 655.
In Wicker v. Moore, 79 Neb. 755, 113 N.W. 148, we pointed out that it was the general rule that one must be entitled to the present possession of his share in severalty, and that the rule was different in New York and Illinois, and had been changed by statute in New Jersey. In the body of the opinion in Mathews v. Glockel, 82 Neb. 207, 117 N.W. 404, 405, 18 L.R.A.,N.S., 1208, we cited this case as authority for "It is the general rule that the present right of possession is a prerequisite to the right to maintain partition." We accordingly there *637 refused to follow the Illinois rule which the majority now adopt. The Mathews decision came 11 years after Oliver v. Lansing, supra, was decided which contains the reference to the Illinois statute upon which the majority rely.
In Mathews v. Glockel, supra, the syllabus is: "An action by a tenant in common to have his undivided share set apart to him is in effect an action in partition, and may not be maintained unless the tenant in common is entitled to the present possession of such share." (Emphasis supplied.)
In Riley v. Whittier, 100 Neb. 107, 158 N.W. 446, 447, we had a case involving personal property where the relationship was "one of a common ownership * * * each party having a right of possession of the whole." We there held: "A court of equity has jurisdiction to decree partition or, if necessary, a sale of personal property owned in unequal shares by two parties each of whom has a right of possession." (Emphasis supplied.)
In Nitz v. Widman, 106 Neb. 736, 184 N.W. 172, 174, we said: "The general rule now is that every cotenant may demand partition as a matter of right, however inconvenient or injurious it may be to make it, or whether the title of the parties be legal or equitable, if there is a present right of possession." (Emphasis supplied.) We there held that the plaintiff, as a tenant in common with the defendant and having a right to immediate possession, had a right to maintain the action.
The majority distinguish Weddingfeld v. Weddingfeld, 109 Neb. 729, 192 N.W. 227. Accordingly, I discuss it more in detail. We there quoted: "`The general rule which prevails with few exceptions unless it has been changed by statute is that a joint tenant or tenant in common will not be permitted to maintain a suit for partition unless he has an estate in possession, namely, such an estate as entitled him to enjoy the present possession of the property and receive the rents and profits thereof as one of the joint tenants or cotenants thereof.'" We said: "It will be seen that an essential element requisite to the maintenance of the action is the possession, actual or constructive, or the immediate right to such possession of the lands sought to be partitioned. The proceeding operates upon the possession and enables each of the owners to take and enjoy his share of the common or joint estate." We cited the statute here involved and held: "Counsel point out that, in this section, `nothing whatever is said about possession or the right of possession.' And they argue that because of the absence of a reference to possession or the right of possession the Legislature intended to say that partition might be had although the parties seeking the relief had neither the possession nor the right thereto. A reading of the statute, however, discloses that it provides for partition only among `tenants in common or joint tenants.'" (Emphasis supplied.)
In Weddingfeld v. Weddingfeld, supra, the briefs show that the attorneys for appellant urged with reference to this statute that "The court will observe from a reading of this statute that all tenants in common or joint tenants of any estate in land may be compelled to suffer partition thereof. Nothing whatever is said about possession or the right of possession." "However, if the court would not want to go so far as to disturb the life tenant in his possession, we can conceive of no reason why the fee title could not be partitioned among the owners without disturbing the previous estate * * *" and urged that the petition stated a cause of action in partition as between the plaintiff and two of the defendants as joint owners of the remainder, and that the court erred in dismissing the petition as to the two remainderman defendants.
The appellee urged that "nothing is said in this statute about `possession,' because the very description of the parties entitled to bring, or compelled to suffer, partition necessarily contemplates possession, or the right to present possession, and forecloses the idea of possession in another; and if possession, by virtue of a vested freehold estate, be found to be in another, then they are not joint owners with such other, and are not entitled to maintain the suit."
*638 With reference to the power of a court to award partition between remaindermen, without disturbing the previous particular estate and in answer to appellant's contention, the appellee cited the specific rule quoted in the second paragraph of our opinion, which requires an estate in possession. We adopted the rule. However, we did not specifically base the decision as to this matter on that rule but rather on the failure to show service on or an appearance of the defendant remaindermen. I do not discuss Bartels v. Seefus, 132 Neb. 841, 273 N.W. 485, for it merely follows the Weddingfeld decision.
As I see it, we have a legislative and constitutional history that negatives the conclusion of the majority as to the intent and purpose of the Legislature in adopting the 1871 amendment.
We have the above-quoted decisions. The precise question here presented does not seem to have been directly decided. No matter whether these quotes are called statements, dicta, or holdings, the fact remains that there entered into all the above decisions the premise that an essential element to the right of maintenance of the action of partition under our statute is possession or the immediate right to possession of the lands sought to be partitioned. Almost 80 years have passed since the statute was adopted. We began construing it as above indicated 65 years ago. We have repeatedly and consistently followed that construction since. At least on two occasions we have been urged to accept the construction now made. We heretofore have not done so. On at least one occasion (Wicker v. Moore, supra) we refused to follow the Illinois and New York decisions.
I point out but do not speculate on the effect that this opinion may have in making it possible for one co-owner in remainder to force the termination of a remainder estate held in common by two or more. If that result is to be had it should follow from a clear legislative act.
I would follow the law as we have stated it to be. I would let this question stand decided. I would follow the practice long followed by this court and sustain the construction of the statute that we have heretofore repeatedly made until changed prospectively by the Legislature if that lawmaking body sees fit to do so. See Mosher v. Huwaldt, 86 Neb. 686, 126 N.W. 143. We have approved this statement: "`The doctrine of stare decisis applies with full force to decisions construing statutes, especially where they have been long acquiesced in.'" Patterson v. Kerr, 127 Neb. 73, 254 N.W. 704, 706.
The majority place great reliance upon section 25-2193, R.R.S.1943. That statute presents no difficulty when properly analyzed. It deals not with the right to maintain partition, but with the distribution of the proceeds after the action has proceeded to a sale of the property.
Freeman, Cotenancy & Partition, section 549, page 662, states: "The parties before the Court whose title has been divested by the sale may have a vast variety of interests. Some of them may be in possession of estates for life or for years; others may have estates in reversion or remainder; and still others may have mere contingent interests. Upon each of these interests, other claims and liens may have attached." It is the court's problem then to protect all those rights in its decree of distribution.
That such a situation can exist in this state is certain. We have held that "The owner of a life estate in a portion of a larger tract of land may maintain partition proceedings against a cotenant holding a fee-simple title." Nitz v. Widman, supra. See Annotations, 12 A.L.R. 644, 134 A.L.R. 662. Under those circumstances the court in its decree of distribution would be compelled to protect the rights, in the proceeds, of the owner of the life estate, the owner of the remainder, and the cotenant in fee.
The statute applies to situations of the character above described by Freeman and illustrated by Nitz v. Widman. The statute is: "If an estate for life or years be found to exist as an encumbrance upon any part of said property, and if the parties cannot agree upon the sum in gross which they will consider an equivalent for such estate, the court shall direct the avails of the encumbered *639 property to be invested, and the proceeds to be paid to the encumbrancer during the existence of the encumbrance." (Emphasis supplied.) Section 25-2193, R.R.S.1943. The statute makes it possible for the cotenant in fee to get his share in cash presently, for the cotenant for life or years to get his share which is the value of the use, and for the remainderman to be protected and to get his share after the termination of the "existence of the encumbrance."
This matter is discussed in Restatement, Property, section 126e, page 401: "When the owner of an estate for life secures partition in accordance with the rule stated in this Section, and the partition is effected by a judicially ordered sale of the whole, or of a part, of the interests in the land which is concurrently owned (see § 125, Comment d), such owner is entitled to the use for his life of that portion of the proceeds which represents the undivided share in which the estate for life existed. To whatever extent a state, by statute, has conferred upon the owner of the estate for life a power to obtain a lump sum, as the commuted value of such use for his life, to that extent the power described in this Section has been amplified. To whatever extent a state, by statute, has conferred upon the owner of the future interest limited to take effect in possession after the estate for life, a power to compel the owner of the estate for life to accept a lump sum, as the commuted value of such use for his life, to that extent the power described in this Section has been modified. In the absence of statute making some other provision the `use for his life' of that portion of the proceeds which represents the undivided share in which the estate for life existed consists in the receipt by the owner of the estate for life of the interest earned by such proceeds, periodically during the continuance of the life which measured such estate." See, also, 47 C.J., Partition, § 851, p. 583; 40 Am.Jur., Partition, § 91, p. 81.
The majority quote from Weddingfeld v. Weddingfeld, supra, that where the parties fail to agree upon the value of the life estate "* * * the court orders the investment of the entire amount realized from the sale," and from that it is argued that it was a life estate in the whole of the property that was within the legislative intent.
To that there are two answers. The statute does not direct the investment of the entire amount received from the sale. The statute directs the investment of the "avails of the encumbered property." And what is the "encumbered property"? It is that "part" of the property upon which there exists "an encumbrance" of an estate for life or years. When read in the light of the statute and the preceding language in the Weddingfeld opinion, it is clear that there, in using the term "entire amount realized from the sale," [109 Neb. 729, 192 N.W. 228] we referred only to the amount received from the sale of the encumbered part, not all the property.
If the Legislature used this language to mean a direction to invest "the entire amount received from the sale" and not the amount received from the sale of the "encumbered" part and intended to provide for a situation where there was a life estate in the whole of the property, then the language of the act must be construed so as to make "any part" of the property mean "all" the property, and the word "encumbered" be stricken from the act. We do not have the power to so amend and delete the legislative act. Not only that, but that construction leaves the court without legislative direction as to what to do in the event of a sale where the owner of a life estate in a portion of a larger tract partitions against or is partitioned against by a cotenant holding a fee simple title. In that event, must the proceeds of that part of the land held in fee be invested and the owner denied the right, that follows from his fee title, to possession of the entire share that represents his fee title? The majority so construe the statute and the legislative act. If the statute means that, then must the "proceeds" of the investment be paid to the life estate owner even though he admittedly has an interest in only a part of the investment and proceeds? Such would seem to be the result of the conclusion of the majority flowing from the effort to make a statute of
*640 distribution into a grant of power to maintain an action.
The majority rely upon the discussion of this subject in Restatement, and rely upon class 3 and the statement in the notes that Nebraska is one of five states whose statutes "probably" come within class 3. The weight to be given the "probably" is illustrated by the statutes of two of the states cited. Section 27-1301, Arizona Code 1939, provides in general language that "The owner or claimant of any real property or of any interest therein, may compel a partition thereof between him and other owners, * * *." The New Mexico act, section 25-1201, New Mexico Ann.Stat., 1941, contains the specific words, "whether they be in possession or not." No further comment seems necessary.
One further matter requires attention. This matter comes here on appeal from an order of the trial court sustaining special demurrers to plaintiff's petition for the reasons that it appears on the face of the petition that the plaintiff is not in possession or entitled to the possession of the real estate; that plaintiff's interest is subject to a life estate; and that partition may not be maintained. The transcript shows personal service of summons on the life tenant. No appearance is shown nor is a default shown to have been entered.
Implicit in the majority decision is the fact that material consideration is given to the failure of the life tenant to object and that because thereof a right arises in the plaintiff to maintain partition subsequent to the filing of the petition and independent of any facts alleged in the petition.
We have held that "`As a general rule, only the pleading demurred to may be considered in passing on the demurrer. The court must assume that the facts are as alleged, and cannot assume the existence of any facts not alleged, nor find facts in aid of the pleading, nor hear evidence on the questions involved, nor consider what evidence may be introduced at the trial.' * * * Courts cannot consider extrinsic facts admitted by the parties or counsel, nor an agreed statement of facts, nor can matters within the personal knowledge of the court be considered." Griffin v. Gass, 133 Neb. 56, 274 N.W. 193, 196.
We have also held that on demurrer other records in the proceedings which are not a part of the petition or demurrer are not before the court until some issue of fact or law is properly raised requiring an investigation thereof. In re Estate of Statz, 144 Neb. 154, 12 N.W.2d 829.
We have also held that "The rule that a demurrer searches the entire record applies only when a demurrer is filed to a pleading subsequent to the petition. * * * We think the rule is clear that the court will not ordinarily go beyond the pleading questioned in determining whether a cause of action is stated. If the transcript on appeal, or previously filed petitions, contains statements tending to support defendant's position, they may be introduced as evidence on the trial, but they may not be considered in determining whether a cause of action has been stated in the amended petition on which the plaintiff elected to stand." In re Estate of McCleneghan, 145 Neb. 707, 17 N.W.2d 923, 926.
Here the majority decision goes not to any pleading but to a failure of a defendant to plead to find a fact reason on which to hold that a petition states a cause of action. In my judgment they err in so doing.
I am authorized to say that CHAPPELL and WENKE, JJ., concur in this dissent.
CARTER, Justice (concurring).
I submit that the dissent is not tenable. The question for decision in this case, concisely stated, is: Can the owner of a vested estate in remainder maintain a suit in partition against his remaining co-owners, where there is an outstanding estate for life vested in a third person in the whole of the premises for which partition is sought and the life tenant does not object to the partition and defaults when suit is brought for that purpose?
Under the common law the answer would be simple for the reason that possession or the right to possession was a necessary element of the right to partition. The Legislature of this state, however, has enacted *641 statutes in derogation of the common law dealing with the partition of real property of joint owners. Consequently we must look to the statutes of this state as they have been construed by the courts in solving the question before us.
The precise question before us has not been previously decided by this court. The closest approach to it will be found in Weddingfeld v. Weddingfeld, 109 Neb. 729, 192 N.W. 227, and Bartels v. Seefus, 132 Neb. 841, 273 N.W. 485, 487. In each of those cases it was held that where there is an estate for life vested in a third person in the whole of the premises of which partition is sought, a remainderman cannot maintain an action in partition "over the objection of the holder of the life estate." The fact that the court deemed it necessary to insert the limitation "over the objection of the holder of the life estate" makes it clear that where the life tenant did not object the court was of the opinion that a partition action could be maintained. Unless this conclusion is valid I can see no reason for incorporating the limitation in the stated rule.
The proper solution of the problem must rest upon the correct interpretation of sections 25-2170, 25-2190, and 25-2193, R.R.S.1943. The effect of these three sections was considered in Weddingfeld v. Weddingfeld, supra, which opinion, in my judgment, points out the result at which we should arrive in the case before us. In that opinion it was said, unqualifiedly, as follows: "It will be seen that an essential element requisite to the maintenance of the action is the possession, actual or constructive, or the immediate right to such possession of the lands sought to be partitioned." After making the foregoing statement, the court went on to say: "However, it is argued by plaintiff's attorneys that this action may be maintained by virtue of the provision of section 9238, Comp.St.1922, which provides:
"`When the object of the action is to effect the partition of real property among several joint owners, the petition must describe the property, and the several interests and estates of the several joint owners thereof, if known. All tenants in common, or joint tenants of any estate in land may be compelled to make or suffer partition of such estate or estates in the manner hereinafter prescribed.'
"Counsel point out that, in this section, `nothing whatever is said about possession or the right of possession.' And they argue that because of the absence of a reference to possession or the right of possession the Legislature intended to say that partition might be had although the parties seeking the relief had neither the possession nor the right thereto. A reading of the statute, however, discloses that it provides for partition only among `tenants in common or joint tenants.' Before it can be invoked to compel the holder of the life estate to submit to partition, a court must first hold that the holder of the life estate and the remaindermen are `tenants in common or joint tenants.' It is plain that plaintiff and her two minor children whom she has made defendants are tenants in common or joint tenants in remainder, but they are not tenants in common or joint tenants with the holder of the life estate. She holds her interest in severalty. As to her it is not necessary that the statute make reference to possession, or the lack of possession, because she does not fall within its terms."
It will be observed that the court uses the expression "tenants in common or joint tenants in remainder" and indicates that partition would be proper between them, but points out and bases its decision upon the fact that the life tenant was not a joint tenant or tenant in common with the remainderman. If this were not true, the court could have disposed of the matter by simply stating that possession or the right to possession was an essential element of a joint tenancy or tenancy in common and that the action could not be maintained for that reason.
The court in the Weddingfeld case then said: "But counsel point to two succeeding sections of the statute, namely, 9258, Comp.St.1922, which provides for the payment of incumbrances, if any are found to exist, and section 9261, which provides:
*642 "`If an estate for life or years be found to exist as an incumbrance upon any part of said property, and if the parties cannot agree upon the sum in gross which they will consider an equivalent for such estate, the court shall direct the avails of the incumbered property to be invested, and the proceeds to be paid to the incumbrancer during the existence of the incumbrance.'
"When these sections are read in connection with 9238 they cannot be construed to confer upon the remainderman the right to force partition upon the holder of the life estate. Section 9261, upon which chief reliance is placed, does not authorize the court to ascertain the value of the life estate, and pay it over to the holder of the life estate, but, on the other hand, it directs the court to have the entire fund created by the sale invested, `and the proceeds to be paid to the incumbrancer during the existence of the incumbrance.' It is clear, we think, that the provisions of the last two mentioned sections are meant only to apply, first, to cases where there is an ordinary incumbrance, such as a mortgage; and, second, where there is an estate for life or for years and the holder of such estate voluntarily submits to the partition, but, having gone thus far, fails to agree with the other parties in interest upon the value of the life estate. In that event the court orders the investment of the entire amount realized from the sale." The sections referred to are now sections 25-2190 and 25-2193, R.R.S.1943. If partition cannot be maintained at all where there is an outstanding life estate in a third person in the whole of the premises, the very basis of the dissenting opinion, no reason exists for any reference to a life estate in section 25-2193. It might be argued that it applies only where there is a life estate in a part of the property. The same reasoning that would deny partition to all of the property would certainly apply to a part and the absence of the right of possession of the part would bar a partition proceeding as to it. Even more significant is the statement in the Weddingfeld case as to what happens where the holder of a life estate voluntarily submits to the partition but fails to agree with the other parties in interest upon the value of the life estate. It there states: "In that event the court orders the investment of the entire amount realized from the sale." This refers to something more than a life estate in a part of the property. The direction that the court shall invest the whole amount derived from the sale clearly indicates that it was a life estate in the whole of the property that was within the legislative intent. During the life of the life tenant the income from the investment is paid to the life tenant, and at the death of the life tenant the proceeds of the sale are divided among the remaindermen.
This poses the question as to how the two statements in the Weddingfeld case can be reconciledthe one that possession is an essential requisite to the maintenance of the partition suit and the other that the property can be sold and the entire amount realized from the sale invested. There can be only one answer. Possession is an essential element to the maintenance of a partition action. If the life tenant does not object to the maintenance of the proceedings, or if he defaults after service of process in such proceedings, the "tenants in common or joint tenants in remainder," to use the words of the Weddingfeld case, become entitled to the possession for the purposes of the partition action.
It is true as pointed out in the dissenting opinion that possession is generally deemed to be an essential element to the existence of a joint tenancy or a tenancy in common. The language contained in section 25-2170, R.R.S.1943, in relation thereto is followed and qualified by the words "of any estate in land" and comprehends what the Weddingfeld case called "tenants in common or joint tenants in remainder."
In further support of this position I point out that Restatement, Property, c. 11, pp. 656, 657, classifies the various state statutes on partition into three classes. The third class includes those statutes which authorize "any joint tenant or tenant in common in an unconditional and indefeasible future interest" to compel partition of a future interest thus held in co-ownership. *643 In the 1948 Supplement to Restatement, p. 427, the Nebraska statute is cited as one probably falling within class 3, as the majority opinion holds.
In summarizing, it is my view that possession or the right to possession is necessary to the maintenance but not to the commencement of a partition action. Where a "tenant in common or joint tenant in remainder" commences a partition suit without having the possession or right to possession of the property, and the life tenant defaults or fails to object, the "tenants in common or joint tenants in remainder" thereupon are constructively in possession for the purposes of the action. The possession thus attained becomes as effective for the purposes of the action as if it had existed when the action was commenced.
This construction is amply supported by our statutes on the subject and is consistent with the previous decisions of this court. It makes unnecessary a more specific discussion of the meaning of the words "all tenants in common, or joint tenants of any estate in land" contained in section 25-2170, R.R.S.1943.
In the case at bar the life tenant did not object to the partition. He defaulted in the action. For the purposes of the suit the "tenants in common or joint tenants in remainder" thereupon became constructively entitled to the possession. But, unless agreement is reached as to the value of the life estate, the entire proceeds of the sale must be invested and the income from the investment paid to the life tenant. The intent of the statute must be followed.
I therefore concur with the majority opinion and agree that the judgment should be reversed with directions to overrule the demurrers to the petition. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624630/ | 769 S.W.2d 687 (1989)
Ralph MEDRANO, Appellant,
v.
Leo J. GLEINSER, Appellee.
No. 13-89-059-CV.
Court of Appeals of Texas, Corpus Christi.
April 13, 1989.
Rehearing Denied May 11, 1989.
John Griffin, Jr., Victoria, for appellant.
Charles K. Bluntzer, Victoria, for appellee.
Before DORSEY, UTTER and SEERDEN, JJ.
OPINION
DORSEY, Justice.
This is an accelerated appeal from an election contest. Ralph Medrano was certified as the winner of the November 8, 1988, election for County Commissioner of Precinct 1 in Goliad County, Texas, by a margin *688 of one vote over his opponent, Leo Gleinser, after a recount of the votes cast,[1] Gleinser filed an election contest suit against Medrano challenging this result on the ground that votes had been illegally cast in favor of Medrano. Following a bench trial, judgment was entered that the election be declared void. The trial court found that illegal votes were cast in the election, that the number of such illegal votes was greater than the number of votes necessary to change the outcome of the election, and that the true outcome of the election could not be determined. Medrano appeals by two points of error. We affirm.
By his first point of error appellant complains that the trial court erred in voiding the election because the uncontroverted evidence showed that illegal votes did not change the outcome of the election. By his second point appellant complains that the trial court erred in failing to make certain requested findings of fact which would have supported his position that the illegal votes cast did not change the outcome of the election.
By his election contest suit, appellee challenged the final canvass under Tex. Elec.Code Ann. § 221.003 (Vernon 1986) as not reflecting the true outcome of the election because illegal votes were counted. The burden of proving illegality in an election contest is on the contestant, who must prove that illegal votes were cast in the election being contested and that a different and correct result would have been reached by not counting the illegal votes. Miller v. Hill, 698 S.W.2d 372, 375 (Tex. App.Houston [14th Dist.] 1985, writ dism'd w.o.j.); Goodman v. Wise, 620 S.W.2d 857, 859 (Tex.Civ.App.Corpus Christi 1981, writ ref'd n.r.e.); Wright v. Board of Trustees of Tatum Independent School District, 520 S.W.2d 787, 790 (Tex.Civ.App. Tyler 1975, writ dism'd).
There was evidence at trial that at least six illegal votes were cast in the present election. Sections 221.009 and 221.011 provide the following instructions on the manner the trial court is to proceed once it has determined that illegal votes were cast in the race in question:
Section 221.009. Compelling Voter to Reveal Vote
(a) A voter who cast an illegal vote may be compelled, after the illegality has been established to the satisfaction of the tribunal hearing the contest, to disclose the name of the candidate for whom he voted or how he voted on a measure if the issue is relevant to the election contest.
(b) If the number of illegal votes is equal to or greater than the number of votes necessary to change the outcome of an election, the tribunal may declare the election void without attempting to determine how individual voters voted.
Section 221.011. Illegal Votes Subtracted
(a) If the tribunal hearing an election contest can ascertain the candidate or side of a measure for which an illegal vote was cast, the tribunal shall subtract the vote from the official total for the candidate or side of the measure, as applicable.
(b) If the tribunal finds that illegal votes were cast but cannot ascertain how the voters voted, the tribunal shall consider those votes in making its judgment.
Once the court determines which illegal votes it can subtract and which are still uncertain, Section 221.012 provides that:
(a) If the tribunal hearing an election contest can ascertain the true outcome of the election, the tribunal shall declare the outcome.
(b) The tribunal shall declare the election void if it cannot ascertain the true outcome of the election.
At trial, Neva Thigpen, the voter registrar of Goliad, County, Texas, testified that she kept the voter lists for voting precincts in the county. Her testimony indicted that a number of people, including five who *689 testified at trial, Teresa Ybarbo, Victor Ybarbo, John Elps, Guadalupe Chavez and Bernice Garza, cast ballots in the election, but had addresses outside the boundaries of Goliad County Commissioner Precinct 1. All five testified that they voted in the general election and in the race for County Commissioner Precinct 1. Teresa Ybarbo, Victor Ybarbo, and John Elps testified that they voted for Medrano. Guadalupe Chavez and Bernice Garza testified that they voted for Gleinser. Had there been no other evidence of illegal votes cast in the race in question, and assuming the trial court had no reason to doubt the testimony of these five witnesses, Section 221.011(a) would require the court to subtract three votes from Medrano and two from Gleinser, making the race a tie.
However, there was also evidence at trial of a sixth illegal voter, Nicolas Davila, who was disqualified from voting because of a prior felony conviction. Davila was called as a witness by Medrano and testified that he voted in the general election and cast his vote in the Commissioner's race for Gleinser, but that at the time he registered to vote, he was not aware that his prior felony conviction disqualified him. Davila's testimony also indicated that he had been upset by an article in the newspaper which indicated that he had voted illegally. He informed Thigpen about his displeasure at the article, and appeared to blame both her and Gleinser for it. When asked at trial if he informed Thigpen about how he voted, he responded as follows:
Q. Did you tell her you voted for Leo Gleinser?
A. I didn't know why he wanted to embarrass me like that, let the whole town know that I'm a convicted felon when I'm trying to forget the past, you know, just trying to move ahead.
In the present case, appellant claims that, under Sections 221.011(a) and 221.012(a), once Davila testified that he cast his vote for Gleinser, the trial court had no choice but to accept his testimony as true, subtract a vote for appellee, and declare appellant the winner of the election.
However, in a nonjury case, the trial court, as factfinder, is the sole judge of the credibility of witnesses and of the weight to be given to their testimony. The court has the power to believe or disbelieve all or part of a witness' testimony. Parker v. Hawkins, 668 S.W.2d 444 (Tex.App.Corpus Christi 1984, no writ); In re Estate of Page, 544 S.W.2d 757, 761 (Tex.Civ.App. Corpus Christi 1976, writ ref'd n.r.e.).
The factfinder is not compelled to believe uncontradicted testimony that is suspicious or that comes from an interested or biased source. Casualty Reciprocal Exchange v. Parker, 12 S.W.2d 536, 537 (Tex.Comm'n App.1929); Angelina County Lumber Co. v. Reinhardt, 285 S.W.2d 446, 451 (Tex.Civ. App.Beaumont 1955, writ ref'd n.r.e.); see also Owen Development Co. v. Calvert, 157 Tex. 212, 302 S.W.2d 640, 642 (1957). If the testimony from an interested witness is of such a nature that it cannot readily be contradicted if untrue, an issue is presented as to the credibility of the witness. See James T. Taylor and Son, Inc. v. Arlington Independent School District, 160 Tex. 617, 335 S.W.2d 371, 376 (1960); Law Offices of James R. Bass, Inc. v. Bryan, 609 S.W.2d 652 (Tex.Civ.App. San Antonio 1980, no writ); Victor Equipment Co. v. Denton Independent School District, 548 S.W.2d 464 (Tex.Civ.App. Fort Worth 1977, writ ref'd n.r.e.). The same test applies when the witness shows bias.
The conviction of a felony is admissible to attack a witness' credibility. Tex. Rule of Civ.Evid. 609(a). It is not necessary that the conviction be of a crime involving moral turpitude. See Jackson v. Granite State Insurance Co., 685 S.W.2d 16, 17 (Tex. 1985).
In the present case, the evidence is undisputed that Davila was a convicted felon who was ineligible to vote at the time of the election. He was called to the stand by Medrano. Davila's testimony suggests that he was biased against Gleinser because Davila blamed him for damaging his reputation by a newspaper article about his having voted illegally. By the confidential nature of the electoral process, only Davila *690 knows how he actually voted in the race in question, and his assertions are not readily controvertible by appellee. The effect of Davila's testimony, if believed, would be to subtract a vote from Gleinser and tip in favor of Medrano a race which otherwise would have been evenly divided when the subtractions were made for the other five illegal voters.
We hold that the trial court reasonably could have refused to believe Davila's testimony that he voted for Gleinser, and thus found that it could not ascertain the true outcome of the election. Cf. Farrell v. Jordan, 338 S.W.2d 269, 272-73 (Tex.Civ. App.Houston 1960, writ dism'd). According, we find that pursuant to Section 221.012, the trial court was authorized to declare the election void. Appellant's first point of error is overruled.
As the basis for its judgment, the trial court found that in the Commissioner's race "the number of illegal votes is equal to or greater than the number of votes necessary to change the outcome of the election." By point of error two, appellant complains of the trial court's failure to make specific requested findings, e.g., who voted how, why they were illegal voters, etc. As the requested findings were merely elements of the factual conclusion already made by the court, it is not necessary for the court to make the additional requested findings. Tex.R.Civ.P. 299; see also Baptist Memorial Hospital System v. Bashara, 685 S.W.2d 352, 355 (Tex.App. San Antonio 1984), affirmed, 685 S.W.2d 307 (Tex.1985). Point of error two is overruled.
The judgment of the trial court is AFFIRMED.
NOTES
[1] Gleinser was initially certified the winner by a 16-vote margin over Medrano, his closest opponent in a three candidate race. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624658/ | 769 S.W.2d 404 (1989)
298 Ark. 390
ARKANSAS DEPARTMENT OF HUMAN SERVICES, A DIVISION OF CHILDREN AND FAMILY SERVICES, Petitioner,
v.
Howard TEMPLETON, Probate Judge, Craighead County, Arkansas, Respondent.
ARKANSAS DEPARTMENT OF HUMAN SERVICES, A DIVISION OF CHILDREN AND FAMILY SERVICES, Petitioner,
v.
Tom KEITH, Circuit/Chancery Judge, Benton County, Arkansas, Respondent.
Nos. 89-97, 89-102.
Supreme Court of Arkansas.
April 12, 1989.
S. Whittington Brown, N. Little Rock, for petitioner.
Attorney Gen., Steve Clark, Little Rock, for respondents.
GLAZE, Justice.
Petitioner, the Arkansas Department of Human Services, Division of Children and Family Services (hereafter DHS), requests this court for writs of mandamus to compel respondents, Probate Judges Howard Templeton and Tom Keith, to hear certain juvenile cases pending in their respective courts. In support of its requests, DHS asserts each judge has appointed a special master to hear juvenile matters in violation of Rule 53 of the Arkansas Rules of Civil Procedure and the specific directives of this court as set out in Hutton v. Savage, 298 Ark. 256, 769 S.W.2d 394 (1989). Because both actions filed here by DHS involve the same legal issues arising from similar circumstances, we consolidate the actions for purposes of this court's review and decision writing.
We first note that DHS requested the wrong remedy in its petitions. A writ of mandamus does not lie to control the discretion of a trial court or tribunal. *405 State v. Nelson, 246 Ark. 210, 438 S.W.2d 33 (1969). However, where the lower court's order is entered without or in excess of jurisdiction, we can carve through the technicality and treat the application as one for certiorari. Wasson v. Dodge, 192 Ark. 728, 94 S.W.2d 720 (1936); see also First Nat'l Bank v. Roberts, 242 Ark. 912, 416 S.W.2d 316 (1967). The settled rule is that when there is a remedy by appeal, a writ of certiorari will not be granted unless there was a want of jurisdiction, or an excess in its jurisdiction, by the court below. State v. Nelson, 246 Ark. at 217, 438 S.W.2d at 38. That want of jurisdiction or act in excess of jurisdiction must be apparent on the face of the record. Id. Such are the situations in the two matters pending before us.
In our recent Hutton decision, the court ruled that the probate court's use of a master in a juvenile case was in excess of its jurisdiction, and, in doing so, we held that any reference to a master under Rule 53 should be the exception and not the rule. We reached a similar holding with respect to circuit courts in Collins v. State, 298 Ark. 380, 769 S.W.2d 402 (April 10, 1989). Actually, the ruling concerning the use of masters reiterated what we had already said in Gipson v. Brown, 295 Ark. 371, 749 S.W.2d 297 (1988). See also State v. Nelson, 246 Ark. at 218-220, 438 S.W.2d at 39-40.
In one of the cases before us, Judge Templeton, acting under Rule 53, appointed a master to hear a juvenile case, explaining that he was unable to conduct a hearing required by the Juvenile Code "due to scheduling and other conflicts." In the second case, Judge Keith, acting pursuant to Rule 53, entered similar but separate orders that appointed a master to hear four different juvenile cases. Judge Keith explained in his orders that he was "unavailable" and that the master, who had previously functioned as juvenile master for Benton County, was familiar with the facts and previous history of the four juvenile cases. DHS contends that, under the circumstances described, neither judge had authority to appoint masters and that the appointments demonstrate the continued illegal use of special masters for juvenile cases. We agree.
Some confusion was to be expected after a juvenile system operated under the auspices of the county courts, which had been functioning for nearly 100 years, was ruled unconstitutional. Juvenile matters are no longer heard by the county courts or their referees and masters, but rather are to be decided by full-fledged courts of general jurisdiction presided over by full-time judgesan event that was long overdue.
These courts of general jurisdiction, which are now empowered to decide juvenile matters, are regulated by and subject to the applicable rules set forth in the Arkansas Rules of Civil Procedure, including, but not limited to, Rule 53. Section (B) of this rule specifically provides that the "reference to a master shall be the exception and not the rule" and except in matters of account and difficult computation of damages, "a reference shall be made only upon a showing that some exceptional condition requires it." Certainly a simple statement of unavailability or conflict by the trial judge is not a showing of exceptional conditions.
If a trial court has problems with congested dockets or conflicts in scheduling, and the prompt and proper administration of justice warrant it, the temporary assignment of judges may be had pursuant to Ark.Code Ann. § 16-10-101 (1987). Or, when the temporary replacement of a judge is necessary, such a procedure is provided under Ark. Const. art. 7, §§ 21 and 22. Wessell Bros. Foundation Drilling Co. v. Crossett Pub. School Dist. No. 52, 287 Ark. 415, 701 S.W.2d 99 (1985); see also Ark.R.Civ.P.App.Admin.Order Number 1.
Since courts with jurisdiction of juvenile actions now may avail themselves of the applicable laws that have been generally relied upon by general jurisdiction courts to avoid delays in trying cases on their dockets, the employment of part-time masters for this purpose should be unnecessary. A crowded or congested docket has never been determined a valid purpose for the *406 appointment of a master under ARCP Rule 53; nor is a master appropriate because he or she is more familiar with the case or because the judge is unavailable. Clearly, Judge Templeton's and Judge Keith's appointments of masters in the juvenile cases pending in their respective courts were unauthorized and in excess of their jurisdiction. Therefore, we grant writs of certiorari quashing the judges' orders that appointed juvenile masters as well as those orders ensuing from such appointments.
Our decision today should, we think, resolve the doubts that seem to have lingered since the Hutton decision as it affected the use of masters in juvenile cases. Clearly, any attempt or pretense to use Rule 53 to continue the employment of masters to hear juvenile actions, as has been the situation in the past, is now contrary to the law. Although not all juvenile judgeship positions are in operation at the moment, we are confident that most of our trial judges are meeting the challenge and responsibility of hearing and deciding juvenile matters on the same par as matters concerning property and monetary issues. While a few problems or questions may remain to be resolved in implementing the state's new juvenile court structure, hopefully, the use (or more appropriately the non-use) of masters or referees by trial courts in such juvenile matters has been laid to rest by this court's decision in Hutton and the one we hand down today.
PURTLE, J., dissents.
HAYS, J., concurs.
HAYS, Justice, concurring.
I expressed my views on the use of masters in a dissenting opinion in Hutton v. Savage, 298 Ark. 256, 769 S.W.2d 394 (1989). I was a minority of one in that position and since the majority view was decisive I saw no need to restate it in Collins v. State, 298 Ark. 380, 769 S.W.2d 402, decided this week. Now the majority position is further solidified in the decision of these consolidated cases and while I have not changed my view, I see nothing to be gained by continuing to espouse a position that has no likelihood of prevailing. On that basis, and the fact that given the approach taken by the majority the petitioner is entitled to the relief sought, I concur.
PURTLE, Justice, dissenting.
I believe the majority takes a stand which is too rigid. There is no room for any give and take. Of course it all started with Walker v. Department of Human Services, 291 Ark. 43, 722 S.W.2d 558 (1987), in which I concurred along with Justice Hickman. I stated in Walker that the legislature had the power to assign cases involving dependent-neglected children to any existing court.
I went along with the decision in Hutton v. Savage, 298 Ark. 256, 769 S.W.2d 394 (1989) because I agreed that the legislature could not give judges the authority to appoint another person a judge to help carry the load. I did not forsee that the opinion in Hutton would be construed as prohibiting judges from appointing special masters in every situation. Masters and referees may be necessary to keep up with the demand that dependent-neglected child cases require. ARCP Rule 53(b) states that "reference to a master shall be the exception and not the rule." Cases of dependent-neglected children constitute such an exception. After all, juvenile cases are only a small part of the circuit judge's and chancellor's present caseload. We created Rule 53 and we can amend it if necessary to accommodate the requirements announced in Walker and Hutton.
The courts and the people need a bridge from the present until the new juvenile code becomes effective on August 1, 1989. This court has the authority and the duty pursuant to Article 7, Section 4, and Amendment 28 of the Constitution of Arkansas to provide a procedure which will suffice until the new law becomes effective.
The majority "can carve through the technicality" and reach the desired result, but at the same time refuse to allow trial courts to "carve through the technicality" and serve the legitimate purposes of the *407 juvenile justice system. Certainly these cases should be decided by full-fledged judges, but judges cannot fully investigate all cases from start to finish. Judges acting on other cases are not required to attend to every detail concerning every case filed. No doubt present judges are willing to work a little harderuntil the new law becomes effective.
I agree with the majority that judges and chancellors cannot anoint clones to perform their judicial functions. However, this court should not hand them a brick while they are attempting to swim the stream. Under the circumstances, I would exercise a little more tolerance in appointing masters and referees until the new law takes effect. Trial courts must have some discretion in matters such as this in order to accomplish what is demanded by the law. Generally speaking we leave much to the discretion of trial courts. Certainly this is just such an occasion. Common sense and justice dictate that we be strong enough to bend. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624678/ | 769 S.W.2d 565 (1989)
Mark BROWN, Appellant,
v.
The STATE of Texas, Appellee.
No. 870-87.
Court of Criminal Appeals of Texas, En Banc.
May 10, 1989.
*566 Tena M. Hollingsworth, on appeal only, Dallas, for appellant.
John Vance, Dist. Atty., Kathi Alyce Drew, John D. Nation, Cynthia Hayter, Lana McDaniel, Asst. Dist. Attys., Dallas, and Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
PER CURIAM.
Appellant was convicted by a jury of the offense of aggravated robbery pursuant to V.T.C.A. Penal Code, § 29.03. The jury then assessed punishment at ninety-nine years confinement in the Texas Department of Corrections and a $10,000 fine. The Dallas Court of Appeals affirmed appellant's conviction in an unpublished opinion. Brown v. State, No. 05-86-00769-CR (Tex.App.Dallas, delivered June 15, 1987). We granted appellant's first two grounds for review to determine whether the court of appeals was correct in holding Article 37.07, § 4(a), V.A.C.C.P., the parole instruction law, was constitutional. Appellant's third ground for review was also granted to determine whether the court of appeals erred in its determination that the prosecutorial argument which apparently requested the jury to consider the parole law in assessing appellant's punishment was cured by the trial court's instruction to disregard. Finally, appellant's fourth ground for review was granted to assess the correctness of the court of appeals' holding that appellant's Batson error was not properly preserved.
Appellant, in his first two grounds for review, argues that Article 37.07, § 4(a), V.A.C.C.P., is unconstitutional, first that it violates the separation of powers doctrines of Article II, § 1 of the Texas Constitution and, second, that such a jury instruction denies him due course of law.[1] In response to these assertions the court of appeals opined:
In his first two points of error, appellant contends that the trial court erred in charging the jury on the law of parole pursuant to article 37.07, section 4(a) of the Texas Code of Criminal Procedure because the instruction violates the separation of powers doctrine and deprived appellant of his right to a fair trial under the state and federal constitutions.
*567 This court has previously held that article 37.07, § 4(a), does not violate the separation of powers doctrine, nor does it deprive defendants of a fair trial. Rose v. State, 724 S.W.2d 832, 834-39 (Tex. App.Dallas 1986, pet. granted); Joslin v. State, 722 S.W.2d 725, 731-36 (Tex. App.Dallas 1986, pet. granted). Accordingly, we overrule appellant's first two points of error.
In Rose v. State, 752 S.W.2d 529 (Tex.Cr. App.1987) (Opinion on Rehearing), this Court held that the statute requiring the parole law instruction was violative of both the separation of powers doctrine and due course of law provision of the Texas Constitution. We also decided that if such an instruction was given under Article 37.07, § 4(a), supra, albeit erroneous, a harmless error analysis was required pursuant to Rule 81(b)(2), Tex.R.App.Pro., to determine whether under the circumstances of the case a reversal is required. Thus, appellant is correct in his assertion that the court of appeals erred in its holding that Article 37.07, § 4(a), does not violate the separation of powers doctrine and the appropriate constitutional due course of law provision. Therefore, in accordance with Rose, we will remand this cause to the court of appeals for a harm analysis under Rule 81(b)(2), Tex.R.App.Pro. See also Gilbert v. State, 769 S.W.2d 535 (Tex.Cr.App. 1989).
In his third ground for review it is appellant's contention that the court of appeals erred in holding that the trial court's instruction to disregard the prosecutor's argument was sufficient to cure any error or prejudice created by such statements. At the punishment phase of the trial and during final argument the prosecutor made the following argument:
Ladies and gentlemen, I want to call your attention just briefly to Page Four, which is in the Charge, that talks about parole. That means that when someone is given a sentence it is possible that that sentence given by the jury orwhen a defendant is given a sentence, it's possible that that sentence given by the judge or the jury can be a fiction under the laws of parole.
The trial court immediately sustained appellant's objection to this argument and instructed the jury to disregard it. Appellant presents the identical argument as that asserted in the court of appeals, that notwithstanding the trial court's curative instruction, reversible error was committed because the prosecutor's comments were so manifestly improper and prejudicial that the trial court should have granted appellant's motion for mistrial. We agree with the court of appeals. We find that although the complained of argument was improper in that it was a call for the jury to consider and apply the parole law to this appellant, it was not of such a nature that the curative instruction did not remedy the error. The trial court's immediate instruction to disregard was sufficient to cure the error. Jackson v. State, 745 S.W.2d 4 (Tex.Cr.App.1988). Ground for review number three is therefore overruled.
In appellant's last ground for review it is his contention that the court of appeals erred in concluding that he had failed to properly preserve a jury selection error based upon Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The record is clear that prior to the petit jury being sworn, but after their selection, and the excusal of the remainder of the jury panel, appellant objected to the prosecution's use of its peremptory challenges to purposefully eliminate the black members of the jury panel, the cognizable ethnic group of which appellant is a member. Relying on this Court's opinion in Henry v. State, 729 S.W.2d 732, 737 (Tex.Cr.App. 1987), the court of appeals held that appellant's Batson objection was untimely. We agree with the court of appeals. In Henry, id., at 737, we held:
In cases tried after the Batson opinion was issued, the procedures outlined in that case must be followed. We prospectively declare that a defendant may make a timely objection within the Batson lines if such objection is made after the composition of the jury is made known but before the jury is sworn and the *568 venire panel is discharged. [Emphasis in original]
The opinion in Batson was delivered on April 30, 1986, and appellant was tried in July of 1986. Consequently, the procedures set out in Henry and in Batson control as to the timeliness of the appropriate objection necessary for the preservation of error. The court of appeals was correct in its assessment that since appellant's Batson objection was interposed after the venire panel had been excused no error was preserved for appellate review. Appellant's fourth ground for review is therefore overruled.
In accordance with our disposition of appellant's first and second grounds for review, we vacate the judgment of the court of appeals and remand this cause to that court for further proceedings consistent with this opinion.
TEAGUE, J., dissents to disposition of Grounds for Review No. 3 and 4.
MILLER, J., dissents to disposition of Ground for Review No. 4
NOTES
[1] In accordance with Article 37.07, § 4(a), supra, the trial court at the punishment phase of the trial instructed the jury as follows:
Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the sentence imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.
It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.
Under the law applicable to this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-third of the sentence imposed or twenty years, whichever is less, without consideration of any good conduct time he may earn. If the defendant is sentenced to a term of less than six years, he must serve at least two years before he is eligible for parole. Eligibility for parole does not guarantee that parole will be granted.
It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.
You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2409716/ | 719 S.W.2d 259 (1986)
Anthony Quinn BROOKS, Appellant,
v.
The STATE of Texas, Appellee.
No. 10-86-059-CR.
Court of Appeals of Texas, Waco.
October 23, 1986.
Rehearing Denied November 20, 1986.
Discretionary Review Refused February 18, 1987.
*260 F.B. McGregor, McGregor & McGregor, Inc., Hillsboro, for appellant.
Dan V. Dent, Dist. Atty., Hillsboro, for appellee.
HALL, Justice.
Waiving a trial by jury and pleading not guilty by reason of insanity, appellant Anthony Quinn Brooks was convicted by the court for the offense of aggravated assault. Punishment was assessed at confinement in the Department of Corrections for sixteen years. We affirm the judgment.
In two points of error appellant challenges the sufficiency of the evidence in light of his affirmative defense of insanity, and the admission of his statement into evidence.
It is undisputed that appellant struck a 76 year-old man in the face with a broken broom handle on May 23, 1985, in the Hill County Courthouse. The record reflects that a few minutes prior to the incident, appellant went to the office of his probation officer, Nell Ward, at her request. During their visit, Mrs. Ward stressed the importance of appellant's procuring employment so that he could pay his fine and restitution for throwing a brick through a MHMR window. In response, appellant asked if he could go to jail instead so that he would not have to find a job. When Mrs. Ward replied that she could not arrange that, appellant left the office while making obscene comments. Although Mrs. Ward described him as "very, very agitated," he did not attempt to harm her or the two young men in the office. After appellant left, she heard a can being kicked against the office door and appellant shouting obscenities. Within minutes, appellant accosted the complainant, a complete stranger, who had just walked from the county tax office. Appellant stated, "I want my money." The complainant responded, "What money?" Appellant then repeated the remark and the complainant, thinking that appellant was joking, responded *261 "They got mine, too," referring to the tax office. Appellant then said, "I'm going to split your head" and proceeded to break a broom handle that he had in his hand over his knee. He then struck the complainant across the face and arm with the jagged edge causing lacerations and injuries. Appellant escaped and was later arrested at his home.
Insanity is an affirmative defense and the accused has the burden of proof by a preponderance of the evidence. V.T.C.A., Penal Code § 8.01(a); Thompson v. State, 612 S.W.2d 925, 929 (Tex.Cr.App.1981); Graham v. State, 566 S.W.2d 941, 943 (Tex.Cr.App.1978). See also Van Guilder v. State, 709 S.W.2d 178, 180-81 (Tex.Cr. App.1985); Thomas v. State, 701 S.W.2d 653, 661 (Tex.Cr.App.1985). The State is not required to negate the existence of such affirmative defense, V.T.C.A., Penal Code § 2.04(d); Madrid v. State, 595 S.W.2d 106, 118 (Tex.Cr.App.1980), nor present expert medical testimony of sanity to counter defense experts. Graham, 566 S.W.2d at 950. The issue of sanity is a fact question, and the trier of fact may believe or disbelieve experts or lay witnesses. Wade v. State, 630 S.W.2d 418, 419 (Tex. App.Houston [14th Dist.] 1982, no pet.).
The evidence in our case shows that appellant was placed on probation in February, 1985. His probation officer, Mrs. Ward, had a degree in sociology with a minor in psychology as well as previous work experience in the mental health field. In her opinion, appellant was doing well on job referrals by following through and making timely appearances. Based upon their 18 to 19 visits, she found appellant to be coherent, although occasionally resistant to procuring employment. When she broached this subject at their previous meeting, he had become more hostile and stated that it was impossible to find work. She thought, however, he was improving in his performance as a probationer. She had never seen him exhibit the type of behavior that he exhibited on the day of this offense, and although he had become angry on occasion, his behavior had always been appropriate. In her opinion, appellant attacked the elderly man because he was angry at her but realized that it would not be prudent to attack his probation officer or the two young men in the office. Upon cross-examination, Mrs. Ward testified concerning notes detailing appellant's abnormal behavior in the months before the offense as well as his previous suicide attempts and his psychiatric hospitalization. She also affirmed that appellant was being kept in a cell with no clothes or bed linens because he had set fire to the mattress and had attempted to hang himself. However, Mrs. Ward remained firm in her opinion that she thought appellant knew what he was doing and made several decisions "as to what was appropriate in what setting." Although she ultimately agreed that a rational person would not have asked to be incarcerated, she stated that he was in control of his behavior in her office immediately prior to the offense.
Kathryn Walker, the Chief of the Adult Probation Office in Hill County, was also present in the office during appellant's visit just prior to the assault in question. She had a degree in psychology, was formerly a behavioral science specialist and mental health therapist in the United States Army, and had worked on a behavior modification program at a state hospital. She had frequently observed appellant and had several conversations with him. She observed no severe mental defect or disease exhibited, and she described his problems as emotional rather than mental-illness oriented. She based this conclusion upon the fact that appellant made timely appearances at his appointments, followed instructions "very capably" in seeking jobs, knew where he was and whom he was talking with, and controlled himself in a normal fashion. She was of the opinion that he was manipulative in trying to avoid work and observed that the closer he came to obtaining employment placement, the more he reported that his mind was "bothering" him. She did not perceive him as a threat to anyone at the time of his visit just prior to the assault.
*262 Appellant was also examined by three medical experts. Two reported that he was mentally incompetent at the time of the offense; the other was uncertain. Dr. Morris reported that appellant had attempted suicide three times and also referenced other prior abnormal behavior and psychiatric hospitalization. He observed that appellant, though remorseful, could not explain his behavior toward the complainant. Dr. Morris concluded that appellant was "most likely psychiatrically impaired at the time of his alleged crime." He considered appellant "to have been with `mental illness' and psychotic during the episode" based upon the bizarreness and lack of consideration for his crime and the lack of attempt to escape punishment. He referenced appellant's long psychiatric history and the fact that it was not traditionally violent toward others but rather toward property in an equally bizarre manner. He noted that appellant had apparently discontinued his medication just prior to the incident and "as is typical in severe Schizophrenia, when one does so, one becomes psychotic within one to two weeks." Appellant's was a "fairly classical example." In summary, Dr. Morris found appellant to be mentally incompetent at the time of the offense and unable to control his behavior to a degree consistent with the rational and legal considerations for such. Dr. Johnson also detailed appellant's psychological history and concluded that appellant suffered from a schizophrenic disorder. In his opinion, appellant was "aware that the offense was wrong ... but did not have sufficient control to modify his behavior at the time due to noncompliance with his medical regimen (of his own accord)." Dr. Stidvent also interviewed appellant and reported appellant's version of the incident along with his psychological background. He concluded that appellant was "mentally ill", had "evidence of schizophrenia," and required psychiatric hospitalization, but that "it [was] hard to say whether or not he was insane at the time of the alleged offense." He also concluded that appellant could benefit from psychiatric hospitalization and needed to be continued on medication.
Appellant testified that he felt he was better now and could conform his behavior to the requirements of society. He had no real explanation for the incident other than his mind had been in a "wreck" and that he felt "bad" in the days before the attack. Appellant could not recall asking Mrs. Ward to put him in jail, but testified that he did want to be "locked up" at the time either in jail or in a hospital so that he could begin to feel better. He repeatedly stated that before the attack he was not mad at anyone except possibly himself for being "sick." He testified that he was nervous, upset, depressed and had previously ingested brake fluid and poison. He testified that he left Mrs. Ward's office crying and was drawn to the broom like a "magnet." He stated that he had not planned to hit anyone, but that when the man walked toward him he thought the man was going to attack him and he became scared. Appellant concluded that, at the time, he was insane. He did affirm that he now knew his actions to be wrong and was remorseful.
Finally, upon appellant's motion, the court took judicial notice of the testimony of the jail administrator from the previous trial regarding appellant's abnormal behavior in jail following his arrest and his suicide attempts.
The issue of insanity is not strictly medical, and expert witnesses, although capable of giving testimony that may aid the fact-finder in its determination of the ultimate issue, are not capable of dictating determination of that issue. Graham, 566 S.W.2d at 949. Ultimately, the issue of insanity at the time of the offense lies in the province of the fact-finder, not only as to the credibility of the witnesses and weight of the evidence, but also as to the limits of the defense itself. Id. at 952. In the case before us, although two medical experts diagnosed appellant as insane at the time of the offense, their observations were made several months after the offense. Expert testimony, even if uncontradicted, does not establish insanity as a matter of law. Such unrebutted testimony *263 only raises an issue of fact to be resolved by the trier of fact. Guidroz v. State, 679 S.W.2d 586, 588-89 (Tex.App. 4 Dist.1984, pet. ref'd). See also Madrid, 595 S.W.2d at 118. Here, two lay witnesses who had training in psychology and mental illness made observations of appellant minutes before the offense and testified that he was in control of his behavior and suffered from emotional problems rather than mental illness. See Graham, 566 S.W.2d at 951; Guidroz, 679 S.W.2d at 588-89. In light of all of the evidence, we hold that the trial court was entitled to find against appellant on the defense of insanity. Appellant's first point of error is overruled.
In his second point, appellant complains of the admission into evidence of his confession. The record reflects that prior to the taking of any statement, appellant was given his Miranda[1] warnings, which he appeared to understand. Appellant appeared "talkative" during the half-hour interview and "admitted to it right up front." Appellant never invoked any of the rights explained to him and never asked for an attorney. A written statement, prepared by an officer, was then signed by appellant. In the officer's opinion, the statement was given freely and voluntarily and appellant was not promised anything, threatened or coerced. At trial, appellant's objection that the entire subject matter was irrelevant and incompetent because appellant was insane at the time of the offense was overruled. The officer who took the statement later testified that appellant was coherent at the time of the statement "except for still being in an angry mood." He also testified that there was no communication problem between them. We conclude that the record supports that appellant was duly warned about and understood his legal rights surrounding the confession; that he knowingly, intelligently and voluntarily waived such rights; that the confession was freely and voluntarily given; and that appellant was mentally competent to make the statement. See Humphrey v. State, 646 S.W.2d 949, 951 (Tex.Cr.App.1983); Sutton v. State, 644 S.W.2d 506, 510 (Tex. App.Eastland 1982, pet. ref'd). Appellant's second point of error is overruled.
The judgment is affirmed.
NOTES
[1] Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1956). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2409717/ | 661 F. Supp. 2d 69 (2009)
Peter J. MARINELLI, Plaintiff,
v.
John E. POTTER, Postmaster General, United States Postal Service, Defendant.
Civil Action No. 07-40223-FDS.
United States District Court, D. Massachusetts.
July 22, 2009.
*71 Peter J. Marinelli, Ashland, MA, pro se.
*72 MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
SAYLOR, District Judge.
This is a civil action alleging discrimination and retaliation against a mail carrier by his supervisor in the Southborough Post Office in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 623 et seq.
Plaintiff, Peter J. Marinelli, who is now proceeding pro se, alleges that he became the target of a campaign of harassment as a result of his participation in an Equal Employment Office investigation of his allegations of age discrimination. On August 16, 2007, he filed a two-count complaint for age discrimination (Count 1) and retaliation (Count 2), naming John E. Potter, the Postmaster General of the United States Postal Service, as the defendant.
Plaintiff has voluntarily dismissed his claim of age discrimination. Defendant has now moved for summary judgment on the retaliation claim. For the reasons stated below, the motion will be denied.
I. Background
The following facts are presented in the light most favorable to plaintiff.
A. Initial Disputes
Peter Marinelli began working for the United States Postal Service in 1973. In 1985, he became a rural route mail carrier in the post office in Southborough, Massachusetts. In 1998, Joseph Mulvey became the Postmaster in Southborough. According to Marinelli, he and Mulvey had an unremarkable working relationship for the first four years they worked together. This changed starting in 2002.
Marinelli and Mulvey first clashed during the March 2002 "count period" that sets postal carrier compensation for the following year. According to Marinelli, during the count period the mail is sorted into tubs for each route. Postal employees then further sort and count the types of items in each route, such as ordinary letters, parcels, letters requiring customer signatures, larger flats, and so on. The number of each kind of item for the route is then written on a Post-It Note that is stuck on the tub. The object of this exercise is to determine how long it takes each carrier to perform the tasks of his or her route. The results affect the mail carriers' compensation. Apparently, the U.S. Postal Service publishes a Rural Carriers Handbook that prescribes certain rules to govern the process.
During the March 2002 count period, Mulvey announced that certain time that was historically included in the count would now be excluded. Marinelli told Mulvey that such a change violated the Handbook. According to Marinelli, Mulvey became angry, grabbed the book, and told him to get back to work.
A similar incident occurred in August of the same year. According to Marinelli, Mulvey announced a new policy concerning when carriers would start their work day. Marinelli "suggested that this was inefficient and would delay customer delivery." (Pl. Opp. at 2.) At this suggestion, Mulvey became upset and said: "Pete, you're a good carrier, but why don't you get out? Why don't you retire?" (Pl. Opp. at 2.) At the time, Marinelli was one of the oldest carriers in the post office, but he was not yet eligible to retire.
After that incident, relations between the two men deteriorated. Mulvey began to single out Marinelli for reprimand based on alleged minor infractions.
*73 On October 28, Mulvey threatened to discipline him for the condition of the address labels on his mail-sorting racks and for not signing some of his sign-out sheets. Marinelli contends that other mail carriers had engaged in the same practice, without comment. When Marinelli invoked his right to have a union steward present when discipline is threatened, Mulvey refused. According to Marinelli, Mulvey ordered him to sit down and stated: "if you don't change your attitude, I will make your last three years miserable."
On December 26, 2002, Mulvey accused Marinelli of arriving five minutes late to work and falsifying his time sheet. Marinelli contends that he arrived on time. Mulvey threatened him again, saying "I could hang you for this."
In January 2003, Mulvey again took issue with the arrangement of Marinelli's sorting racks. Marinelli had recently acquired new stops on his delivery route and had adjusted the cells in his racks to make room for the stops. Mulvey did not approve of the manner in which he made these adjustments and required him to redo it. Marinelli contends that this kept him at work for three extra hours before a holiday weekend.[1]
On March 3, 2003, Mulvey performed an inspection of Marinelli's delivery route, following him on the entire route. The next day, he reprimanded Marinelli for delivering mail out of sequence. According to Marinelli, in 2001, Mulvey had granted a customer's request to have his stop delivered earlier in the route, which is why there was an out-of-sequence delivery.
Marinelli reminded Mulvey of the arrangement.
The 2003 mail count took place in February and March. On March 11, Mulvey warned Marinelli that if he ever made a mistake in the count in his favor, he would be "in big trouble" if he did not bring the error to Mulvey's attention. The next day, Mulvey came to Marinelli's work station and requested his personal count notes from the previous week.[2] Marinelli did not have the notes with him. Mulvey told him to bring them next day. He then asked Marinelli for the Post-It Notes that management prepared for the tubs during the count. Marinelli explained that he had already discarded them. Mulvey refused to tell Marinelli why he was seeking these items. Two days later, Mulvey again asked for Marinelli's personal count notes. Marinelli stated that he was not willing to provide them. At this, Mulvey became angry.
On March 17, Marinelli contacted an EEO counselor named Marcia Condon and began the EEO counseling process. Meanwhile, his confrontations with Mulvey continued.
On April 2, Marinelli's immediate supervisor issued him a Letter of Warningthe first such form of discipline in his postal careerfor his refusal to turn over the personal count notes. Marinelli alleges that the supervisor acted at Mulvey's direction. The same day, Mulvey denied Marinelli credit in the mail count for 125 mail flats that had been included in his count.
*74 Two days later, on April 4, Mulvey denied Marinelli's request for "incentive pay" for the use of a private vehicle to deliver his mail route. At the time, mail carriers who purchased a new right-hand drive vehicle for use on their routes were entitled to a $500 incentive payment. Marinelli had purchased a new Jeep Wrangler and employed it in delivering his route beginning in February 2003. Mulvey denied the claim on the basis that the Wrangler would be too small to carry all of Marinelli's mail. According to Marinelli, the Wrangler is a common vehicle used by mail carriers.
B. The Initial Grievance Procedures
A collective bargaining agreement between the Postal Service and the American Postal Workers Union has created a dispute resolution procedure by which the grievances of postal workers can be addressed. On April 11, Marinelli filed grievances arising from the incidents with Mulvey. The subjects of the grievance were the Letter of Warning, the flats credit denial, and the denial of his vehicle incentive payment. Marinelli ultimately prevailed on all three grievances.[3]
On April 14, at a meeting with Rolf Budd, the union steward for the Southborough Post Office, Mulvey told Budd that anyone who stood up for Marinelli would be in big trouble.
On April 16, Mulvey excused Marinelli from duty so that he could meet with EEO counselor Condon off-site. Marinelli and Condon met for more than an hour and then returned to the post office together. Condon informed Marinelli that she would be interviewing Mulvey as well.
On April 30, Mulvey threatened Marinelli in an attempt to induce him to drop his vehicle incentive pay grievance. He said that if Marinelli lost the grievance, he would not be allowed to use his vehicle at all.
On May 15, a "service talk" for postal employees about the EEO process was held at the Southborough Post Office. Acting supervisor Pat Jackson led the talk, but Mulvey stood next to her, intermittently interjecting comments. At some point, he told the group, in substance, that someone in the office had filed a frivolous EEO claim. He said "just because I treat someone different doesn't mean I'm discriminating against them." According to one of Marinelli's co-workers at the time, Jim Barton, Mulvey "implied that some claims shouldn't have been filed. To my knowledge, the only carrier who had filed an EEO complaint was Mr. Marinelli. It appeared to me that the Postmaster must have been referring to Mr. Marinelli with his comments." (Barton Aff. ¶ 6.)
C. Subsequent Developments
On May 29, Marinelli consulted a therapist about stress he was experiencing. He had previously put in a sick-leave slip for the appointment. On May 30, he was told that he had to provide documentation of the appointment before the leave could be approved. According to Marinelli, this was a departure from customary practice in the office. He submitted the requested proof, but also filed a grievance about the incident. Again, he prevailed. The Labor Relations Specialist concluded that "any [such] blanket policy should be rescinded" and that even under a case-by-case approach, "[i]n this instant case documentation may not have been necessary." (Pl. Opp. at Ex. 12.)
*75 On June 19, Marinelli put in for vacation leave for late September, as he had done the previous six years. His request was denied; the reason given was that the post office could not arrange substitute coverage. Again Marinelli filed a grievance, contending that Mulvey had not made a reasonable attempt to find coverage. Marinelli was ultimately awarded six of the seven days he had requested.
Meanwhile, on June 21, Marinelli filed a formal EEO complaint.
On July 1, the addition of new stops to his route again required Marinelli to rearrange his sorting rack. Without discussing the issue with Marinelli, Mulvey rejected the new arrangement and required him to redo the labels for 42 sections of his rack. According to Marinelli, this took him 50 minutes to complete. On July 30, Mulvey ordered Marinelli to change all of the cells in his rack to double-size cells. Marinelli contends that other carriers were allowed to continue using single-size cells. Marinelli filed a grievance as to both the July 1 and 30 cell rearrangement incidents. Again, he prevailed, and was awarded additional pay. The Labor Relations Specialist concluded that while "management may determine cell size width" in accordance with the Handbook, determinations of cell size "should be consistently applied to all rural carriers in the office." (Pl. Opp. at Ex. 13.)[4]
On August 23, Marinelli again sought vacation leave, this time for a period beginning seven months later. The request was denied August 26, ostensibly because no substitute coverage was available. Again Marinelli filed a grievance, which was settled. Mulvey agreed to seek a replacement and Marinelli was granted the leave subject to the availability of coverage.
D. Marinelli's Medical Leave
Marinelli contends that as a result of Mulvey's conduct, he suffered from increasing stress and anxiety, and was treated for depression and acid reflux. On September 9, his therapist and primary-care physician both recommended that he take a 30-day medical leave from work. He notified the post office and took the leave.
Near the end of September, Mulvey sent Marinelli return-to-work forms. On October 1, Marinelli called his supervisor and reported that he would report back to work on October 9. On October 8, he stopped by the post office to drop off the paperwork. According to Marinelli, Mulvey looked at the paperwork and said: "Is that all you've got for me? Is that it?" He told Marinelli that he would not be allowed back to work the next day and that he would have to take the day as unpaid leave. Mulvey refused to tell him what else he needed. Not wanting to be listed as absent without leave, Marinelli reported to work as planned the following day. Mulvey was not present. Marinelli's supervisor, Glen Hall, assured him that he would not be considered AWOL and instructed him to complete another sickleave slip.
However, later that day, Hall contacted Marinelli at home and said that he might be listed as AWOL after all. Marinelli called Condon and the Occupational Health Office, and learned that Mulvey had sent him the wrong return-to-work forms. The OHO faxed the correct forms to his therapist and he was ultimately cleared to work again on October 11.
*76 A lull in incidents followed, as Mulvey was on leave. However, on December 11, 2003, Hall called Marinelli to his desk to discuss whether the Jeep Wrangler met the requirement that private vehicles used by mail carriers be adequate to carry a normal load. On January 9, 2004, Hall and Marinelli met with a union steward on the Jeep issue. At the conclusion of the meeting, all agreed there was no issue with the Jeep. Nevertheless, on January 27, Hall called Marinelli into Mulvey's office and issued him a Letter of Warning for using a vehicle that did not meet Postal Service regulations. Marinelli filed a grievance and amended his EEO complaint to include retaliation. As a result of the grievance, the Letter of Warning was expunged.
On February 27, Mulvey accused plaintiff of damaging a customer's mailbox. Mulvey did not investigate the damage personally, relying instead on a witness who turned out to be a four-year-old child. Ultimately, at Marinelli's urging, the customer confirmed that he was not responsible for the damage to the mailbox.[5]
E. Procedural Background and Recent Developments
On February 10, 2006, Marinelli's EEOC complaint for unlawful employment discrimination and retaliation was dismissed without a hearing. Marinelli's appeal of this dismissal to the EEOC's Office of Federal Operations was unavailing. On May 11, 2007, the Office of Federal Operations upheld the administrative decision.
Marinelli commenced this action on August 16, 2007. At the time, he was represented by counsel. However, Marinelli's counsel withdrew their appearances in this matter on January 6, 2009, from which time he has been proceeding pro se. In addition, at some point subsequent to filing his complaint in this matter, Marinelli retired from the Postal Service.
Defendant has moved for summary judgment. Plaintiff has voluntarily dismissed Count 1, the discrimination claim, and is now proceeding solely on the basis of Count 2, the retaliation claim.
II. Discussion
A. Standard of Review
Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue is "one that must be decided at trial because the evidence, viewed in the light most flattering to the nonmovant ... would permit a rational fact finder to resolve the issue in favor of either party." Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990). "A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law." DeAndrade v. Trans Union LLC, 523 F.3d 61, 65 (1st Cir.2008) (quoting Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir.1996)).
B. Whether the Claim Survives under the Burden-Shifting Analysis
Defendant contends that Mulvey's actions after April 16, 2003, constitute unlawful retaliation for his complaints about age discrimination. Although the complaint invokes both Title VII and the ADEA, plaintiff has not suggested that he *77 was the victim of discrimination on the basis of his race, color, religion, sex, or national origin, or that he was retaliated against for pursuing his efforts to enforce his rights under Title VII. Thus, the case appears to arise exclusively under the ADEA, specifically 29 U.S.C. § 633a, which prohibits discrimination on the basis of age in federal employment. Federal employees, including postal workers, who suffer "retaliation due to the filing of a complaint of age discrimination may assert a claim under the federal-sector provision of the Age Discrimination in Employment Act of 1967." Gomez-Perez v. Potter, 553 U.S. ___, 128 S. Ct. 1931, 1935, 170 L. Ed. 2d 887 (2008).[6]
In order to survive summary judgment, plaintiff must make out the elements of a prima facie case of retaliation. In order to make out a prima facie case, plaintiff must prove that (1) he engaged in protected conduct under the ADEA; (2) he suffered an adverse employment action; and (3) the adverse action was causally connected to the protected activity. See Bennett v. Saint-Gobain Corp., 507 F.3d 23, 32 (1st Cir.2007); see also Fantini v. Salem State College, 557 F.3d 22, 32 (1st Cir.2009) (citing Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 22 (1st Cir. 2002)); Fennell v. First Step Designs, 83 F.3d 526, 535 (1st Cir.1996) ("The analytical framework for ADEA discrimination and retaliation cases was patterned after the framework for Title VII cases, and our precedents are largely interchangeable.") (citing Hazel v. U.S. Postmaster General, 7 F.3d 1, 3-4 (1st Cir.1993) (applying McDonnell Douglas framework and a unified retaliation analysis to claims under both the ADEA and Title VII)).[7]But see Gross v. FBL Fin. Servs., 557 U.S. ___, 129 S. Ct. 2343, 2349 n. 2, 174 L. Ed. 2d 119 (2009) ("[T]he Court's approach to interpreting the ADEA in light of Title VII has not been uniform. . . . And the Court has not definitively decided whether the evidentiary framework of McDonnell Douglas..., utilized in Title VII cases is appropriate in the ADEA context.").
Once a prima facie case is established, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its employment decision. If this is accomplished, the burden shifts back to the plaintiff to show that the employer's proffered reason is a pretext for *78 retaliatory conduct. Mesnick v. General Elec. Co., 950 F.2d 816, 827 (1st Cir.1991).
Proof that the employer violated the ADEA in the first instance is not a prerequisite to a finding of retaliation. "It is enough that the plaintiff had a reasonable, good-faith belief that a violation occurred; that he acted on it; that the employer knew of the plaintiff's conduct; and that the employer lashed out in consequence of it." Id. at 827.
1. Prima Facie Case
a. Protected Activity
The first requirement is that the plaintiff produce evidence that he engaged in protected conduct. An employee has engaged in activity protected under the ADEA if he "has opposed any practice made unlawful by this section, or because such individual, member or applicant for membership has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under [the ADEA]." 29 U.S.C. § 623(d); Fantini, 557 F.3d at 32. Plaintiff here clearly engaged in protected activity by virtue of his participation in EEO processes arising from his allegations of age discrimination.
b. Adverse Employment Action
The second requirement is that the plaintiff produce evidence that he was subjected to an adverse employment action. That requirement is met here by the evidence of harassing conduct targeting plaintiff.[8]
Defendant, however, contends that any such actions were not materially adverse, and thus not actionable. Under the law, anti-retaliation provisions apply to "those (and only those) employer actions that would have been materially adverse to a reasonable employee. . . . [T]hat means that the employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination." Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53, 56, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006).[9] The protection afforded "does so by prohibiting employer actions that are likely to deter victims of discrimination from complaining to the EEOC, the courts, and their employers." Id. at 68, 126 S. Ct. 2405. "[T]he significance of any given act of retaliation will often depend upon the particular circumstances. Context matters. . . . [A]n act that would be immaterial in some situations is material in others." Id. at 69, 126 S. Ct. 2405.
It is true that some of the episodes, viewed in isolation, consist of apparently petty slights and minor annoyances. But at least some of Mulvey's actions were not trivial. According to plaintiff, warning letters, threats of an AWOL finding, and threats concerning the use of his vehicle were all serious. Furthermore, although some of the events to which he points appear quite minor, there is adequate evidence of a persistent and systematic campaign of harassment. A campaign of petty harassment that is trivial in detail may *79 nonetheless be substantial in gross. See Bart v. Telford, 677 F.2d 622, 626 (7th Cir.1982) (addressing retaliation for conduct protected by the First Amendment).
"[W]orkplace harassment, if sufficiently severe or pervasive, may in and of itself constitute an adverse employment action sufficient to satisfy the second prong of the prima facie case for Title VII retaliation cases." Noviello v. City of Boston, 398 F.3d 76, 89 (1st Cir.2005) (holding "explicitly that a hostile work environment... is cognizable as a retaliatory adverse employment action"); see also Chungchi Che v. MBTA, 342 F.3d 31, 40 (1st Cir. 2003). "In order to prove a hostile work environment, a plaintiff must show that she was subjected to severe or pervasive harassment that materially altered the conditions of her employment." Noviello, 398 F.3d at 92.[10] "In deciding whether the harassment was sufficiently severe or pervasive, the fact finder must examine all the circumstances[, including] the frequency and severity of the ... conduct, ... whether the conduct unreasonably interfered with the employee's work performance, and the effect of the conduct on the employee's psychological well-being." Chungchi Che, 342 F.3d at 40 (internal citations omitted).
Plaintiff has produced sufficient evidence in this regard to survive summary judgment. Among other things, "false accusations of misconduct" and "work sabotage, exclusion, [and] denial of support" can all "contribute to the creation of a hostile work environment." Noviello, 398 F.3d at 93-94. There is evidence here of a campaign of harassment after plaintiff initiated the EEO process that might have dissuaded or deterred a reasonable worker from making or supporting a charge of discrimination.
c. Causal Connection
The third requirement is that the plaintiff produce evidence of a causal connection between the protected activity and the alleged retaliaton. Mulvey's knowledge of the EEO action against him, and his comments during the service talk, are sufficient to raise a plausible inference of a causal connection to the adverse actions taken afterwards. See Mesnick, 950 F.2d at 828 ("There are many sources of circumstantial evidence that, theoretically, can demonstrate retaliation in a way sufficient to leap the summary judgment or directed verdict hurdles. These include, but are not limited to ... comments by the employer which intimate a retaliatory mindset.") (citations omitted).
2. Proffer of Legitimate, Non-Retaliatory Reason
Plaintiff has thus made out a prima facie case. Defendant has done nothing to rebut it, or to proffer a legitimate, non-retaliatory reason for Mulvey's conduct. Thus, summary judgment will be denied. See Mesnick, 950 F.2d at 824-25.
C. Whether Plaintiff Can Assert His Remaining Claims
Even though the claim survives the burden-shifting analysis, substantial issues remain. *80 Defendant notes that plaintiff filed multiple grievances concerning the conduct at issue in this litigation, all of which appear to have been successful; among other things, the various adverse actions taken against him were withdrawn, sometimes with an award of back pay.[11]
1. Whether the Claims Have Been Released or Satisfied
Defendant contends that the retaliation claims should be dismissed on grounds of release and satisfaction.[12] Defendant, however, does not cite any authority for this proposition, and the available authority appears to point in the opposite direction.[13]
It is certainly true, as a general matter, that where an employee succeeds in obtaining a remedy through internal grievance procedures, he cannot bring the same claim in a subsequent lawsuit. See EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1542 (9th Cir.1987) (noting that an employee's private "settlement [of conduct that was the subject of an EEOC claim] has rendered her personal claims moot."); Johnston v. Jago, 691 F.2d 283, 287 (6th Cir.1982) ("The arbitrator sustained the plaintiff's grievance and ordered that she be retroactively promoted with back pay. This relief mooted her requests for relief in the district court action.").[14]
There may not, however, be complete congruence between the subject matter of the resolved grievances and the statutory claims. In other contexts, the Supreme Court has emphasized the independence of statutory discrimination remedies from other pre-existing remedies available to an aggrieved employee. See International Union of Elec., Radio & Mach. Workers, AFL-CIO, Local 790 v. Robbins & Myers, Inc., 429 U.S. 229, 236-37, 97 S. Ct. 441, 50 L. Ed. 2d 427 (1976) ("[C]ontractual rights under a collective-bargaining agreement and the statutory right provided by Congress under Title VII `have legally independent origins and are equally available to the aggrieved employee.'") (quoting Alexander v. Gardner-Denver Co., 415 U.S. 36, 52, 94 S. Ct. 1011, 39 L. Ed. 2d 147 (1974)); see also Oubichon v. North American Rockwell Corp., 482 F.2d 569, 571-72 (9th Cir.1973) (holding that where plaintiff alleged "a chain of incidents indicative of a policy of racial discrimination," the fact that some of the incidents had been addressed in a union grievance procedure did not render the case moot, as plaintiff "may *81 be entitled to injunctive relief from future manifestations of the alleged policy as well as money damages for past injuries.").
Nevertheless, it is also clear that a plaintiff cannot enjoy a double recovery for the same injury. See Oubichon, 482 F.2d at 572-73 (noting that "it is generally agreed that double recovery is to be avoided," but that "[e]ven where the employee receives an award or a settlement as in the present case, judicial relief can be tailored to avoid duplication and windfall gains."). Thus, even if the previous resolution of some of the incidents through the grievance process does not absolutely preclude a retaliation action, it may nonetheless restrict the scope of any recovery.
In light of these concerns, it is incumbent upon plaintiff to explain what additional relief he is seeking that would not be duplicative. "Settlement of a claim through a grievance procedure or arbitration does not preclude an employee from establishing a Title VII [or, by analogy, ADEA] claim based on the same events, but a grievant's acceptance of an arbitration award is prima facie evidence that he has received full compensation for his individual damages, and he has the burden of proving that what he has received was not a complete settlement of his claim for damages." Clark v. Frank, 1993 WL 337481, at *2, 1993 U.S.App. LEXIS 22899, at *6-*7 (9th Cir. Sept. 1, 1993) (emphasis added) (citing Oubichon).[15]
2. The Availability of Recovery on the Remaining Claims
Plaintiff here disclaims any attempt to obtain a double recovery, and has identified at least some additional claims that he contends are sufficient to merit denial of summary judgment. First, he contends that he is seeking damages for incidents that he did not submit to the grievance process. At oral argument, he gave as an example the fact that he never filed a grievance concerning the loss of sick leave when Mulvey gave him the wrong return-to-work forms. Second, he contends that even when his grievances were resolved, he did not always receive everything to which he was entitled; for example, when he grieved the denial of seven days of vacation leave he only received six days. Third, he seeks damages for emotional distress, medical bills, and attorney's fees, which were unavailable through the grievance process. Finally, the complaint also seeks declaratory relief, in the form of a declaration that he was the subject of retaliation in violation of a federal statute.
A postal service employee plaintiff can only bring an ADEA claim under 29 U.S.C. § 633a, which is distinct from the ADEA provisions applicable to private-sector employment. The statute provides that: "Any person aggrieved may bring a civil action in any Federal district court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes *82 of this Act." 29 U.S.C. § 633a(c). However, as discussed below, the case law applying the federal-sector ADEA has limited the universe of "legal or equitable relief" available in such cases. Nor is relief afforded by the private-sector provisions of the ADEAand the case law interpreting and applying themapplicable to the claim of a federal employee, such as plaintiff.[16] Based on the applicable law, it appears that little of the relief sought by plaintiff is actually available to him.
a. Pain and Suffering
Although it is not an entirely settled question, it appears that "physical and mental harm" are not compensable under the ADEA. The ADEA does not permit a separate recovery of compensatory damages for pain and suffering or emotional distress. Comm'r v. Schleier, 515 U.S. 323, 326, 115 S. Ct. 2159, 132 L. Ed. 2d 294 (1995); Collazo v. Nicholson, 535 F.3d 41, 45 (1st Cir.2008) ("Although we have recognized hostile work environment claims under the ADEA, it is well-established that the statute does not allow compensatory damages for pain and suffering.") (internal citation omitted).[17]
Questions of sovereign immunity further complicate the issue. "No circuit has decided whether the `legal or equitable relief' clause of § 633a(c) waives sovereign immunity from damages for emotional distress in an age discrimination action based on retaliation. [I]t is established law in this and most other circuits that, in general, separate damages for emotional distress are not available under identical `legal or equitable relief' clauses in private sector ADEA cases." Villescas v. Abraham, 311 F.3d 1253, 1258-59 (10th Cir.2002).
In Villescas, the Tenth Circuit concluded that pain and suffering damages are not available under the federal-sector ADEA:
We conclude that Congress did not intend to create a two-tiered system of damages under § 633a(c), waiving the government's immunity from open-ended damages for emotional distress related to discrimination based on retaliation, as differentiated from all other forms of discrimination. Neither the text of the statute nor the legislative history support the claim that the language in § 633a(c) contains a special subcategory of damages relating to retaliation claims. To the contrary, when Congress enacted § 633a, it omitted, for example, any provision for damages for willful discrimination, as set out in § 626(b). It would be anomalous to conclude that Congress would decline to waive sovereign immunity *83 for capped damages for willful discrimination, yet be deemed to have waived sovereign immunity for unlimited compensatory damages for intangible, non-economic injuries such as emotional distress (notwithstanding the former is punitive and the latter compensatory). That conclusion is further bolstered by the fact that Congress had opportunities both in 1978 and 1991 to extend common law tort compensatory damage relief to apply to federal worker suits under § 633a, and declined to do so. We must presume that Congress was aware at those times, and during all the years since 1974 when § 633a was passed, that the general rule announced by the courts was to forbid damages for emotional distress, and chose not to interfere with that rule.
311 F.3d at 1261, quoted in Collazo, 535 F.3d at 44 n. 3; accord Smith v. Office of Pers. Mgmt., 778 F.2d 258, 263 (5th Cir. 1985) (holding that "damages for pain and suffering are not recoverable in a suit against the government under the ADEA"). Based on that authority, the Court concludes that plaintiff cannot recover pain and suffering damages.
b. Medical Expenses
Similarly, claims for medical expenses are generally included in the category of compensatory damages that are not available under the ADEA (except, in some circuits, for retaliation in privatesector ADEA cases). See, e.g., Blum v. Witco Chemical Corp., 829 F.2d 367, 376 (3d Cir.1987) ("In addition to a front pay award, the jury awarded $5,000 to each plaintiff for pain and suffering and $1,840 to Blum for medical expenses. We have held that such damages are not recoverable under the ADEA.").[18]
c. Attorney's Fees
Finally, awards of attorney's fees are not available against the United States under the federal-sector ADEA. Nowd v. Rubin, 76 F.3d 25, 28 (1st Cir.1996) ("[T]he ADEA itself does not authorize attorney fee awards against the United States.") (internal citations omitted).[19]
* * *
*84 In light of the above, the relief available to plaintiff is limited to recovery of any remaining back pay (for the loss of vacation leave, sick leave, or otherwise) and declaratory relief. Nonetheless, summary judgment as to those claims will be denied.
III. Conclusion
For the foregoing reasons, defendant's motion for summary judgment is DENIED.
So Ordered.
NOTES
[1] According to Marinelli, he is only allotted three paid minutes per week for updating his mail sorting rack and its cells and labels. Thus, the extra hours were effectively unpaid.
[2] According to Marinelli, some mail carriers make their own notes during the count so that they can double-check management's count. He contends that he was under no obligation to take his own notes on the count, or to retain them afterwards, and that he does not get paid for the time spent preparing them.
[3] He was credited for the 125 flats; he received the full incentive payment for his Jeep; and eventually the Letter of Warning was reduced to a "discussion" and purged from his file.
[4] Although the specifics are not clear, at some point Marinelli was also apparently directed to address route changes that were not his responsibility. He was awarded extra pay for the work upon resolution of a grievance.
[5] In his surreply memorandum, Marinelli refers to a third Letter of Warning in August 2004 for the first time. The time frame of the complaint, however, extends only to January 27, 2004. (See Compl. ¶ 27.)
[6] "The federal-sector provision of the ADEA provides that `[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age ... shall be made free from any discrimination based on age.' § 633a(a) (2000 ed., Supp. V). The key question in this case is whether the statutory phrase `discrimination based on age' includes retaliation based on the filing of an age discrimination complaint. We hold that it does." Gomez-Perez, 128 S.Ct. at 1936.
[7] In Gomez-Perez, the Supreme Court emphasized that the ADEA's prohibition on retaliation in federal employment does not arise from the ADEA's private-sector anti-retaliation provision: "[O]ur holding that the ADEA prohibits retaliation against federal-sector employees is not in any way based on § 623(d). Our conclusion, instead, is based squarely on § 633a(a) ... itself, `unaffected by other sections' of the Act." Gomez-Perez, 128 S.Ct. at 1941 (quoting Lehman v. Nakshian, 453 U.S. 156, 168, 101 S. Ct. 2698, 69 L. Ed. 2d 548 (1981)). However, the same general framework that courts use in other ADEA and Title VII retaliation cases applies in federal-sector retaliation cases. Thus, reference to private-sector provisions and case law are used for purposes of guiding the analysis only and should not confuse the underlying basis of the anti-retaliation protection. Cf. Deslauriers v. Chertoff, 2009 WL 1032854, at *3, 2009 U.S. Dist. LEXIS 33123, at *8 (D.Me. Apr. 16, 2009) ("The parties assume that precedents addressing Title VII's and FMLA's anti-retaliation provisions addressing private employer/employee relationships are applicable to this ADEA federal employee retaliation dispute.").
[8] Plaintiff first met with the EEO counselor on April 16, 2003, which is the latest possible date by which Mulvey could have discovered that plaintiff had initiated an EEO process. Mulvey stated in his EEO affidavit that he excused plaintiff from his work area specifically to enable him to meet with the EEO counselor.
[9] Burlington Northern involved a private-sector Title VII retaliation claim. It appears, however, that the same standard applies to claims under the federal-sector ADEA, given the similar goals of the statutes.
[10] Although Noviello involved a Title VII claim, again, the similarity of statutory purposes supports broader application of this holding to the present case. "Harassment by coworkers as a punishment for undertaking protected activity is a paradigmatic example of adverse treatment spurred by retaliatory motives and, as such, is likely to deter the complaining party (or others) from engaging in protected activity. Reading the statute to provide a remedy for retaliatory harassment that expresses itself in the form of a hostile work environment thus furthers the goal of ensuring access to the statute's remedial mechanisms." 398 F.3d at 90.
[11] Furthermore, to the extent that plaintiff sought an injunction against future harassment, that request for relief has been mooted by his retirement from the Postal Service.
[12] Defendant contends that plaintiff's retaliation claims should be dismissed as "claims released by the plaintiff through the successful resolution of his grievances pursuant to the negotiated grievance process. It should be noted that the plaintiff settled his grievances and achieved full satisfaction. The plaintiff would be entitled to no further relief." (Def. Reply at 3.)
[13] On the record before the Court, there is no evidence that plaintiff ever made a release or waiver of any kind, let alone executed a release that specifically relinquished any rights he might have under the ADEA. As plaintiff states: "Except for one grievance that Postmaster Mulvey conceded at Step 1, I was not involved in the settlements and did not even agree to themonly the union representative is at Step 2 grievances and she could do whatever she wanted without my consent. The grievance settlements didn't specifically refer to ADEA (because they weren't about the ADEA). I did not have a lawyer and wasn't told to have one look at the settlement, and I couldn't have done anything even if I did have a lawyer." (Pl. Sur. at 4.)
[14] Johnston v. Jago has been partially overruled on other grounds by Buckhannon Bd. and Care Home, Inc. v. W.Va. Dep't of Health and Human Resources, 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001).
[15] In Clark, the plaintiff, also a postal service employee, had been suspended for eight days pending investigation of an altercation with a customer on his delivery route. Plaintiff raised the issue of the suspension through the collective bargaining grievance procedure and ultimately reached a settlement agreement by which he received back pay to compensate him for the full length of the suspension. An EEOC administrative law judge subsequently determined that plaintiff's discrimination allegation in connection with that suspension was unsupported. The Ninth Circuit concluded that because plaintiff "had received full compensation for the suspension, and presented no argument or evidence suggesting that the settlement was not a complete settlement of his claim or was not based on the full range of issues cognizable under Title VII, the district court did not err by determining that the claim based on [his] eight-day suspension was moot." Id. at *2, 1993 U.S.App. LEXIS 22899 at *7.
[16] See Nowd v. Rubin, 76 F.3d 25, 27 (1st Cir.1996) ("[S]ubsection 633a(f) flatly states that any ADEA claim brought by a public sector employee under new section 633a is neither affected by nor subject to `any provision of ... [the ADEA], other than the provisions of section 631(b) of this title [pertaining to age limits] and the provisions of this section [633a].' ... [T]he explicit restriction set forth in subsection 633a(f) at the time that section 633a (including subsection 633a(c)) was enacted, plainly provides that section 633a is a self-contained provision applicable exclusively to ADEA claims against public sector employers.") (quoting 29 U.S.C. § 633a(f)).
[17] There is authority, however, holding that damages are available in ADEA retaliation claims as distinct from ADEA discrimination claims. See, e.g., Moskowitz v. Trustees of Purdue Univ., 5 F.3d 279, 283 (7th Cir.1993) ("An exception to the narrow construal of `legal relief' has been recognized for the case in which the plaintiff charges that he was retaliated against for exercising his rights under the age discrimination law. In Travis v. Gary Community Mental Health Center, Inc., 921 F.2d 108, 112 (7th Cir.1990), we treated this provision as creating a tort for which the usual common law damages can be obtained.") (internal citations omitted).
[18] Again, some circuits make an exception to this rule in ADEA retaliation cases. See Lyons v. Hader-Seitz, Inc., 2005 WL 2077358, at *1, 2005 U.S. Dist. LEXIS 45462, at *3 (E.D.Wis. Aug. 19, 2005) ("Hader-Seitz moved to strike Lyons' demand for punitive and compensatory damages, including damages derived from medical expenses. Compensatory and punitive damages are not available under the ADEA, except for retaliation claims.") (citing, inter alia, Moskowitz, 5 F.3d at 283-84). Based on the reasoning of Villescas, the Court declines to adopt that approach.
[19] However, the Equal Access to Justice Act nonetheless allows district courts, in their reasonable discretion, to award attorney's fees to successful federal-sector ADEA plaintiffs. See generally Nowd, 76 F.3d at 28-29 (holding "that the ADEA, 29 U.S.C. § 633a, does not mandate an award of attorney fees and expenses against the United States for the benefit of a prevailing public sector employee, but that the EAJA, 28 U.S.C. § 2412(b), nonetheless permits a discretionary award of attorney fees and expenses against the United States for the benefit of a prevailing ADEA claimant"). But there are differences between ADEA and EAJA attorney fee awards, including rate caps. See Villescas v. Richardson, 145 F. Supp. 2d 1228, 1230-31 (D.Colo. 2001). Plus, "the EAJA provides that the United States is not required to pay the other party's attorney fees if its position in litigation was substantially justified." Id. at 1231.
In addition, the First Circuit has held that an earlier version of the EAJA "does not authorize an award of attorney's fees to a pro se litigant." Crooker v. EPA, 763 F.2d 16, 17 (1st Cir. 1985) (per curiam). Indeed "the general rule is that pro se litigants are not entitled to attorneys' fees." Giannetta v. Boucher, 1992 WL 379416, at *7, 1992 U.S.App. LEXIS 33313, at *19 (1st Cir. Dec. 22, 1992) (per curiam); see also, Lovell v. Snow, 637 F.2d 170 (1st Cir.1981). However, while plaintiff is now proceeding pro se he did initially retain counsel and it is possible that he incurred attorney's fees prior to the point at which he began representing himself. Should plaintiff move under the EAJA in the future, the Court will address the issue at that time. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624613/ | 769 S.W.2d 769 (1989)
Paul PIERCE, Respondent,
v.
PLATTE-CLAY ELECTRIC COOPERATIVE, INC., Appellant.
No. 70947.
Supreme Court of Missouri, En Banc.
May 16, 1989.
*770 Spencer J. Brown, Daniel E. Hamann, Kansas City, for appellant.
John K. Thomas, St. Joseph, for respondent.
ROBERTSON, Judge.
We granted transfer in this case, primarily to consider whether a plaintiff must establish a defendant's violation of industry standards in order to meet his burden of proof in a negligence action. We answer the question in the negative and affirm both consistent precedents of this Court and the judgment of the trial court.
I.
Respondent, Paul Pierce, brought suit against appellant, Platte-Clay Electric Cooperative, Inc., (Platte-Clay) for personal injuries caused by the electric cooperative's alleged negligence. Pierce, a farmer, raised cattle, hogs, tobacco and various row crops near DeKalb, Missouri. Platte-Clay distributes electric power to seven counties in Missouri. Most of the electric power is distributed through overhead lines suspended from poles owned by the appellant. Some of the poles are stabilized by guy wires which extend at an angle several feet away from the pole. The guy wires are anchored into the ground. Some poles, as in this case, serve merely to support other poles which carry the electrically charged lines. These "stub" poles are also anchored by guy wires.
On March 20, 1985, Pierce was applying anhydrous ammonia to a rented field. The tractor Pierce drove was approximately twelve feet wide and pulled a spreader which extended ten feet beyond either side of the tractor. Pierce had been in the field only one time prior to March 20, 1985, and had not walked around the field or otherwise examined it before beginning to spread the ammonia.
As he drove around the field, Pierce looked behind him to check the spreader and forward toward the ground in front of the tractor watching for ditches and rocks. He recalled seeing brush and trees in the northeast corner of the field but he did not focus his vision on them as he approached. When Pierce turned the tractor at the northeast corner to proceed south, he felt a jerk. Inspection revealed that the spreader *771 had snagged on a guy wire which secured a utility stub pole. The stub pole had been placed in the midst of the trees; the guy wire extended into the brush at the edge of the field. The stub pole did not carry an electrically charged line but had secured a cable that supported a utility pole across the highway. Pierce found that the stub pole was broken and that the cable was hanging down, grazing the surface of the highway.
Pierce understood the danger the cable posed to vehicles on the highway. He returned to the tractor, retrieved his tools and began to walk to the cable with the intention of removing it. As he started around the tractor, an eastbound car came into view on the highway. Pierce ran toward the highway in an attempt to flag down the car before it struck the cable. The driver did not see his warnings. Pierce testified that he heard a swishing sound and was thrown into the air. He did not see the car hit the cable nor could he testify as to what immediately followed. There was sufficient evidence that the jury could have found that the car struck the cable, which became taught and caught Pierce's right leg. Pierce was taken by ambulance to a hospital where doctors amputated his right leg below the knee. He also suffered a dislocated left shoulder and head injuries.
Platte-Clay owned the stub pole, guy wire and cable involved in respondent's accident. The pole and guy wire were erected by appellant in 1969. No guy marker (an eight-foot long brightly colored plastic marker) marked the guy wire.
Pierce's petition alleged that appellant knew or should have known that persons operating farm machinery faced an unreasonable risk of injury and that Platte-Clay was thereby negligent in failing to place a guy marker on the guy wire to warn of the wire's presence.
Platte-Clay adopted two primary defense positions throughout trial: First, the cooperative claimed that the bizarre chain of events that led to Pierce's injury were unforeseeable to appellant. Second, even if the events were foreseeable, appellant claimed it followed the standards of the National Electric Safety Code and therefore was not negligent.
The jury returned a verdict for Pierce, assessed his damages at $600,000 and apportioned Pierce's fault at 50 percent. The trial court entered judgment in favor of respondent Pierce for $300,000.
The Court of Appeals, Western District, reversed and remanded on two bases: First, appellant argued, and the court of appeals held, that Pierce improperly relied on Rural Electrification Administration (R.E.A.) bulletins to establish a violation of industry custom or standards. The court of appeals determined that the bulletins were irrelevant and their use during trial prejudiced the cooperative. Second, the court of appeals held that respondent failed to show a violation of industry custom or standard, and, therefore, that respondent failed to make a submissible case of negligence.
We granted transfer and have jurisdiction. Mo. Const. art. V, § 10.
II.
Industry Standards
A.
To make a submissible case of negligence, a plaintiff must prove, inter alia, that the defendant breached a duty of care. A duty is a requirement to conform to a standard of conduct for the protection of others against unreasonable risks. Hoover's Dairy, Inc. v. Mid-America Dairymen, 700 S.W.2d 426, 431 (Mo. banc 1985); W. Prosser and W. Keeton, Prosser & Keeton on the Law of Torts, § 30 p. 164 (5th ed.1984). In this case, the parties held conflicting views as to the standard of conduct the electric cooperative was required to follow.
Respondent Pierce attempted to prove that appellant breached its duty of ordinary care[1] by failing to place a marker on the *772 guy wire. Appellant argues that it was not required by the National Electric Safety Code (NESC) to place a marker on a guy wire near a cultivated field.[2] Appellant claims its compliance with this industry safety standard is a complete defense.
Evidence of industry custom or standard is admissible proof in a negligence case. Kungle v. Austin, 380 S.W.2d 354, 361 (Mo.1964). That the evidence is admissible does not terminate the inquiry, nor does evidence of conformance to such standards require a conclusion that a defendant did not breach its duty to the plaintiff.
In Hannah v. Mallinckrodt, Inc., 633 S.W.2d 723 (Mo. banc 1982), the defendant maintained that the plaintiff had the burden to prove that defendant deviated from industry safety customs to make a submissible case of negligence. This Court rejected that argument. "[A] person charged with negligence cannot excuse his misconduct by proving the same misconduct in otherscustom furnishes no excuse if the custom itself is negligent." [Citations omitted.] Id. at 725.
In Freeman v. Kansas City Power and Light Co., 502 S.W.2d 277 (Mo.1973), this Court found the NESC to be an admission of a minimum standard of conduct within the electric industry. Compliance with that minimum was not, however, conclusive of a defendant's adherence to its duty of care. Id. at 283.
The duty of care is an objective standard determined by what an ordinary careful and prudent person would have done under the same or similar circumstances. Industry customs or standards do not establish a legal standard of care. Fancher v. Southwest Missouri Truck Center, Inc., 618 S.W.2d 271, 274 (Mo.App.1981). Were we to permit industry standards to establish the legal standard of care, we would also permit industry to dictate the terms under which its members could be held liable for negligence.
Tort law serves a different purpose. As Justice Holmes said:
What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.
Texas & Pac. Ry. Co. v. Behymer, 189 U.S. 468, 470, 23 S. Ct. 622, 623, 47 L. Ed. 905 (1903). Appellant conducted a defense equating compliance with the NESC with the exercise of ordinary care. In this case, the jury found that appellant breached its standard of care, in essence rejecting appellant's argument that the NESC standards met the ordinary careful and prudent person standard.
Consistent with this Court's precedents, we again hold that evidence of industry standards is generally admissible as proof of whether or not a duty of care was breached. However, compliance with an industry's own safety codes or standards is never a complete defense in a case of negligence. A plaintiff is, therefore, not required to prove a violation of industry standards to make a submissible case.
B.
Missouri courts have rarely confronted the particular kinds of evidence used to prove electric industry standards and have never specifically addressed the use of Rural Electrification Administration (REA) bulletins. Appellant urges that these bulletins are irrelevant and do not prescribe the standard of care appellant was obligated to follow. Pierce counters that the bulletins were relevant because the evidence proved that appellant's policy was to comply with REA recommendations.
From opening statement to closing argument, appellant attempted to persuade the jury that the National Electrical Safety *773 Code established the standard of care to which appellant's conduct must conform. On cross-examination of appellant's superintendent, respondent was able to elicit testimony that there were "certain specifications and rules under the REA that we follow." This witness had overseen the utility's operations since its inception in 1938. He admitted that the REA bulletins were considered authoritative in the field, that appellant relied on this material in developing line inspection and maintenance procedures and appellant felt compelled to comply with the REA standards.
The Rural Electrification Administration is a division of the United States Department of Agriculture and provides loans to rural electric cooperatives like Platte-Clay. Appellant's superintendent testified that before the cooperative borrows money, the utility's lines and transmissions must be in compliance with REA's engineering specifications. The REA also provides their borrowers bulletins concerning system design and safety requirements.
Pierce attempted to use relevant REA bulletins collected in appellant's files to rebut the position that compliance with the NESC was always a sufficient standard of safety. For example, in one such bulletin the NESC is referred to as a minimum standard, and cooperatives are warned that "[i]n some cases, these standards will be inadequate for local conditions." Another bulletin, relevant to the use of guy guards, contained a line inspection form complete with a checkbox for adding guy guards to existing guy wires. Pierce was able to demonstrate that this form was available to appellant in 1975 and specifically superseded an earlier form without the check for guy guards provided in 1952. However, the evidence showed that appellant continued to use the superseded form through 1980, the year that appellant last inspected the guy wire respondent hit with his tractor.
Just as the NESC does not establish the determinative standard of care, the REA bulletins do not set that standard. Yet, the REA bulletins were properly admitted as relevant evidence in rebuttal of appellant's insistence on the NESC as the appropriate standard of care and of the superintendent's testimony that the cooperative followed certain REA rules and specifications. The REA bulletins, like the NESC, are evidence for the jury to weigh in considering the proper conduct of an ordinarily careful and prudent person under the same or similar circumstances.
Appellant would have this Court adopt the reasoning of Davenport v. White Mountain Power Co., 92 N.H. 20, 24 A.2d 274 (1942). This is the only apparent case in the country which discusses the relevancy of REA bulletins. The defendant in Davenport offered its compliance with the REA guidelines in an effort to prove it met its required duty of care. Davenport found the REA bulletins irrelevant as evidence of the standard of care.
To the extent that Davenport rejects REA bulletins as establishing the standard of care, we agree. However, we disagree with Davenport on the relevancy of the REA bulletins in this case. Here, appellant's superintendent testified that appellant relied on REA bulletins for line inspection and maintenance procedures; those REA bulletins are, therefore, relevant evidence for the jury to consider in weighing the issue of breach of due care in this case. Appellant's point is denied.
III.
Evidence of Similar Occurrences
A.
Next, appellant argues that Pierce failed to prove sufficiently that the danger created by the unmarked guy wire was foreseeable. In particular, appellant contends the trial court erred in allowing Pierce to introduce evidence of appellant's "trouble tickets." A trouble ticket is appellant's record of any reported power outage or needed line repair. In the four years prior to Pierce's accident, there were nine trouble tickets concerning contact between farm machinery and guy wires. Pierce was allowed to admit two of these trouble tickets to demonstrate appellant's notice that farm machinery had struck unmarked *774 guy wires. Appellant contends the incidents were not substantially similar and therefore irrelevant.
When evidence of other accidents is introduced to show notice of danger, the similarity in the circumstances of the accidents need not be completely symmetrical. McCormick on Evidence, § 200 p. 590 (3rd ed.1984). See also Martin, Basic Problems of Evidence, § 10.04(3) p. 234 (6th ed.1988). In this case, both trouble tickets introduced described incidents similar to the Pierce accident where farm machinery contacted appellant's guy wires resulting in support poles breaking. In each instance a similar trouble ticket was created. In at least one of the incidents prior to Pierce's accident, a full report was made to the cooperative's board of directors. This evidence was relevant to show that appellant was aware of the risk of farm machinery contacting unmarked guy wires and that such an event could foreseeably result in an unreasonable risk of injury.
Appellant counters that evidence of other incidents in other fields is not sufficient notice that the particular guy wire and support pole at issue posed a danger. We disagree. Trial courts have wide discretion on issues of admission of evidence of similar occurrences. Lindsey v. Rogers, 220 S.W.2d 937, 940-41 (Mo.App.1949); Doyle v. St. Louis-S.F. Ry. Co., 571 S.W.2d 717, 726 (Mo.App.1978). Our review is limited to a finding that the trial court first satisfied itself that the evidence was relevant to an issue of the case and that the occurrences bore sufficient resemblance to the injury-causing incident, while weighing the possibility of undue prejudice or confusion of issues. Wadlow v. Hinder Homes, Inc., 722 S.W.2d 621, 629 (Mo.App.1986); Blackwell v. J.J. Newberry Co., 156 S.W.2d 14, 20 (Mo.App.1941).
Here, the question of the admissibility of the trouble tickets was initially raised, briefed and examined in a pretrial conference. At that time, the trial court recognized the potential hazards of such evidence, but explicitly stated that the trouble tickets were relevant for the limited purpose of showing the appellant's knowledge that "people were running into unmarked guy wires."
Our review of the record reveals the trial court kept a tight rein on the examination concerning the trouble tickets. The attorneys' questions were strictly limited to the target issue of notice. Likewise, the trial court allowed appellant to rebut Pierce's evidence by demonstrating the statistical improbability of Pierce's accident in light of 12,000 other trouble tickets not related to guy wires. See McJunkins v. Windham Power Lifts, Inc. and E. A. Martin Machinery Co., 767 S.W.2d 95 (Mo.App.1989). (Generally evidence of the absence of other accidents is inadmissible; however, the recent trend is to allow such evidence to rebut proof of notice of a danger, e.g., Koloda v. Gen. Motors Parts Div., Gen. Motors Corp., 716 F.2d 373 (6th Cir.1983); Jones v. Pak-Mor Mfg. Co., 145 Ariz. 121, 700 P.2d 819, cert, denied, 474 U.S. 948, 106 S. Ct. 314, 88 L. Ed. 2d 295 (1985); Boy v. I.T.T. Grinnell Corp., 150 Ariz. 526, 724 P.2d 612 (Ariz.App.1986); Schaffner v. Chicago & North Western Transp. Co., 161 Ill.App.3d 742, 113 Ill. Dec. 489, 515 N.E.2d 298 (1987); Salvi v. Montgomery Ward & Co., Inc., 140 Ill.App.3d 896, 95 Ill. Dec. 173, 489 N.E.2d 394 (1986); Leischner v. Deere & Co., 127 Ill.App.3d 175, 82 Ill. Dec. 120, 468 N.E.2d 182 (1984); Foster v. Marshall, 341 So. 2d 1354 (La.App. 1977); Stanley v. Schiavi Mobile Homes, Inc., 462 A.2d 1144 (Me.1983); Payson v. Bombardier, Ltd., 435 A.2d 411 (Me.1981); Belfry v. Anthony Pools, Inc., 80 Mich. App. 118, 262 N.W.2d 909 (1977); Herman v. Midland AG Serv., Inc., 200 Neb. 356, 264 N.W.2d 161 (1978); Reiger v. Toby Enterprises, 45 Or.App. 679, 609 P.2d 402 (1980); Stark v. Allis-Chalmers and Northwest Roads, Inc., 2 Wash.App. 399, 467 P.2d 854 (1970); and Caldwell v. Yamaha Motor Co., Ltd., 648 P.2d 519 (Wyo. 1982).)
The issue of notice was squarely before a jury capable of weighing opposing evidence. We find no abuse of discretion in admitting evidence of the relevant trouble tickets in this case. Appellant's point is denied.
*775 B.
Additionally, appellant contends the trial court erred in admitting testimony of Dwayne Frakes. Frakes testified he applied fertilizer to the same field five years earlier and struck the same guy wire that Pierce ultimately hit. Pierce argues that this testimony was properly admitted as proof of the dangerous nature of the unmarked guy wire. Appellant argues again that the conditions were not sufficiently similar and Frakes' testimony confused the issues before the jury.
Mr. Frakes' testimony presents a unique factual situation in that he was one of the first witnesses arriving at the scene after Pierce's accident and was, thereby, in a unique position to compare the conditions at the time of Pierce's accident to the conditions five years earlier. Mr. Frakes explained that he was in the field at the same time of year, the brush at the edge of the field was "basically the same," the cultivation pattern was the same, and that like Pierce, he never saw the guy wire before he struck it with his tractor. No report of the Frakes' incident was made to the cooperative because there was no apparent damage to the wire or the pole.
Appellant's objection at trial claimed the Frakes' testimony was irrelevant to the issue of appellant's notice of the unmarked guy wire because the incident went unreported. However, appellant clearly failed to grasp that this evidence was received for a purpose separate from the issue of notice. Rather, the evidence demonstrated that farmers could not see the guy wire, and that left unmarked it created a dangerous condition. Evidence admissible for one purpose may be admitted even though it may be improper for other purposes. Ransom v. Adams Dairy Co., 684 S.W.2d 915, 918 (Mo.App.1985). When received for the purpose of demonstrating a dangerous condition, the fact that the cooperative was never notified of the Frakes' incident is in itself irrelevant. Appellant's objection to the testimony missed the mark.
In Doyle v. St. Louis-S.F. Ry. Co., 571 S.W.2d 717 (Mo.App.1978), the court allowed a witness to testify of his experience at a railroad crossing one year after the collision at issue. The witness explained that because of overgrown vegetation he had been unable to see an approaching train and stopped his car three feet short of the tracks only when he felt the vibrations caused by a moving train. The court was satisfied that the vegetation conditions a year after the accident at issue were sufficiently similar. While the witness was in no way harmed and did not claim to have notified the railroad of the danger, the testimony was found relevant to demonstrate the dangerous nature of a crossing overgrown with vegetation. Id. at 726.
Likewise, Pierce contends Mr. Frakes' testimony was relevant to show the dangerous nature of a guy wire left unmarked. Missouri courts long have recognized that evidence of prior similar occurrences is admissible as proof of a dangerous condition. See, e.g., Cameron v. Small, 182 S.W.2d 565, 570 (Mo.1944); Benner v. Terminal R.R. Ass'n of St. Louis, 348 Mo. 928, 156 S.W.2d 657, 663 (1941). While there is no way that conditions will be exactly the same as at the instant of the accident, it is sufficient for admissibility that the conditions be substantially similar. Salsberry v. Archibald Plbg. & Heat Co., Inc., 587 S.W.2d 907, 912 (Mo.App.1979).
We recognize that the determination of what is evidence of a similar occurrence is often subjective. For that reason, as we have said, a trial court has substantial discretion in ruling on the admissibility of evidence. Karashin v. Haggard Hauling & Rigging, Inc., 653 S.W.2d 203, 205 (Mo. banc 1983). Thus, the admission or exclusion of questionable evidence is committed to the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion. Lawson v. Schumacher & Blum Chevrolet, Inc., 687 S.W.2d 947, 951 (Mo.App.1985).
It was within the trial court's discretion to determine whether Mr. Frakes' testimony described a sufficiently similar event to warrant its inclusion into evidence as proof of the dangerous quality of this particular unmarked guy wire. See Walton v. United States Steel Corporation, 362 S.W.2d 617, 626 (Mo.1962).
*776 We are convinced that Mr. Frakes' testimony was relevant to the issue of a dangerous condition. We find no abuse of discretion in the trial court's determination that Pierce laid a sufficient foundation of similarity between the events to tip the scales of relevancy in favor of admissibility. Appellant's point is denied.
C.
Appellant labels Pierce's accident as "bizarre", "improbable" and "incredulous." Appellant's contention confuses foreseeable harm resulting in a duty of care with the ultimate consequence stemming from a finding of proximate cause.
We agree that the actual chain of events in this case is remarkable. However, a duty exists when a general type of event or harm is foreseeable. Appellant seems to argue that foreseeability is measured by the probability of whether Pierce's specific, actual injury can be anticipated. We disagree. In determining foreseeability for the purpose of defining duty, it is immaterial that the precise manner in which the injury occurred was neither foreseen nor foreseeable. Gold v. Heath, 392 S.W.2d 298 (Mo.1965); Tharp v. Monsees, 327 S.W.2d 889, 894 (Mo. banc 1959). W. Prosser & W. Keeton, Prosser and Keeton on the Law of Torts, § 43 p. 299 (5th ed. 1984).
This Court has suggested that foreseeability is established when a defendant is shown to have knowledge, actual or constructive, that there is some probability of injury sufficiently serious that an ordinary person would take precautions to avoid it. This does not require the balancing of probabilities as appellant suggests. Price v. Seidler, 408 S.W.2d 815, 822 (Mo.1966).
Pierce was injured when he set into motion a chain of events emanating from his farm machinery running into an unmarked guy wire. Because of the nature of the accident, Pierce was required to offer proof of the foreseeability of two aspects of this event: (1) the likelihood that an operator of farm machinery would fail to see the guy wire and run into it with his machinery, and (2) the likelihood that farm machinery running into the guy wire would result in the support pole breaking allowing the cable to drop across the highway.
The record provides ample evidence from which a jury could conclude it was reasonable to foresee that farm machinery would be operated in the vicinity of the wire and that the operator would not see the guy wire. The jury was provided photo exhibits demonstrating the location of the wire and the difficulty in seeing the wire. The jury heard testimony that brush surrounded the pole and guy wire making it difficult to see. Finally, witness Frakes' testimony concerning his previous experience of striking the same guy wire was admitted by the trial court as evidence that this guy wire was susceptible to being inadvertently struck by farm machinery operators.
As to the second aspect, Pierce offered the trouble tickets to demonstrate that not only was farm machinery striking guy wires but that support poles were breaking. The jury could find that these reported events demonstrated notice to appellant that its poles were breaking as a result of machinery striking the supporting guy wire and the potential hazard which occurred herethe cable fallingwas thereby created.
The jury was capable of weighing the evidence and determining that appellant could have foreseen the likelihood that farm machinery would be operated in the vicinity of the unmarked guy wire, that the operator of the machinery would fail to see the wire and run into it, and that the result would be to break the supportive pole allowing the attached cable to drop across the highway. The jury could determine that a dropped cable across a busy highway constituted a hazard. It was this finding that affirmed appellant's duty to exercise ordinary care to address the foreseeable hazard of its unmarked guy wire.
IV.
Jury Instructions
A.
Appellant makes two challenges to Pierce's verdict-directing instruction. The instruction read:
*777 In your verdict you must assess a percentage of fault to Defendant if you believe:
First, Defendant maintained a guy wire near the northeast corner of a cultivated field on the Kurtenbach farm property in support of a utility pole with attached cable crossing over "HH" Highway, and
Second, such guy wire was not equipped with a guard or marker and as a result persons operating farm machinery on the Kurtenbach farm property were exposed to an unreasonable risk of running the machinery into the guy wire and being injured, and
Third, Defendant knew or by the exercise of ordinary care should have known of the existence of this condition and such unreasonable risk, and
Fourth, Defendant failed to use ordinary care to remedy it, and
Fifth, such failure directly caused or directly contributed to cause injury to Plaintiff.
This instruction is a modified version of MAI 22.03.[3]
Appellant first challenges the use of the term "remedy" in the fourth paragraph as an impermissible deviation from MAI 22.03. Appellant argues that that instruction as given allows the jury to assess fault for a variety of perceived failures. Appellant contends the use of the phrase "to warn of it" would have been more appropriate to the issues of the case and consistent with the suggestions provided in the MAI.
The factual situation and instructional challenge in Jackson v. City of St. Louis, 422 S.W.2d 45 (Mo.1967), is closely analogous to the case at bar. In Jackson, the plaintiff sued the City of St. Louis for injuries sustained when he ran into an unmarked steel post anchored near a public baseball field. On appeal, the city challenged the plaintiff's verdict-directing instruction. This Court rejected the city's argument and found that precise language used to define a defendant's duty or breach is not critical so long as the jury is required to find that the condition complained of presented a foreseeable risk of injury, that the defendant had actual or constructive knowledge of the risk and that defendant failed to remedy it. Id. at 48-49. The verdict-director in Jackson is nearly identical to the instruction submitted in the present case. We approved the use of the term "remedy" in Jackson.
While we will not brook unnecessary deviations from the MAI provided, we find no reversible error in the use of the word "remedy" in this case. The instructions preceding the MAI's suggest that when "an approved instruction does not precisely fit your case but one or more instructions are close to it, modifications must be made. Occasionally, the modification will be made by incorporating part of another MAI." MAI 3rd "How to use this Book," p. XCIV [1981]. Use of the term "remedy" is suggested in MAI 22.04 and 22.08, both quite similar to the 22.03 verdict-director submitted in this case. Clearly, there is no specific instruction provided for unmarked guy wire cases. The use of similar pattern instructions was necessary to make the submitted instruction both accurate to this unique case and understandable to the jury.
Moreover, we find no merit in appellant's claim that the use of the term "remedy" was so broad as to create a roving commission. Appellant's argument assumes the term remedy was so vague the jury assessed *778 fault for a number of perceived wrongs including a failure to cut down brush surrounding the guy wire or a failure to move the guy wire. The claimed erroneous portion of the instruction cannot be read apart from the preceding three paragraphs of the verdict-director. Specifically, in paragraph 2nd, the jury was instructed that it was strictly the absence of the guard or marker that resulted in the unreasonable risk. The next paragraph suggested the appellant should have known of the condition of the unmarked guy wire. Finally, in paragraph four, the jury was to examine whether appellant failed to remedy this same condition, i.e., the absence of the guy marker.
The jury clearly based their verdict on appellant's failure to mark a guy wire situated close to a cultivated field. As noted in Jackson, "[a]lthough often done, it is not necessary to say the same thing twice," 422 S.W.2d at 49. Likewise, it was not necessary for Pierce's verdict-director to use the phrase "warn of it" when the jury already found that it was the absence of a guard or marker that resulted in the condition of unreasonable risk. Use of the term "remedy" was appropriate under the facts and theory of the case and certainly was not prejudicial when the instruction is read in context and in its entirety.
B.
Next, appellant charges that the trial court erred in submitting Pierce's verdict-directing instruction because the use of the term "persons" in paragraph second was confusing or misleading to the jury. Appellant argues that the use of the plural imposed an additional burden to show its lack of negligence in the 1980 Frakes incident as well as the subject incident.
Appellant's argument is exaggerated to suggest the jury believed the Frakes incident was also on trial. As previously discussed, the Frakes testimony was relevant for the limited purpose of demonstrating the danger of leaving the guy wire at issue unmarked. We do not infer that the jury was incapable of discerning relevant evidence from the proper meaning of the MAI instruction. In contrast, it is assumed the jury is composed of reasonably intelligent men and women who read the instruction and understood it. Deskin v. Brewer, 590 S.W.2d 392, 401 (Mo.App.1979); Price v. Seidler, 408 S.W.2d 815, 823-24 (Mo.1966).
Likewise, appellant's duty was properly defined as owing to all persons operating farm machinery in the vicinity of the unmarked guy wire. In the 22.00 series of instructions defining the duties of owners or occupiers of land (appellant was an occupier), instructions 22.01, 22.02, 22.03 and 22.04 use plural terms such as "children," "persons," "customers," and "the public." None of the owner/occupier approved instructions define duty in terms of an individual plaintiff.
The instruction was consistent with the plural form used in the MAI. Appellant's duty was properly defined by the instruction given. Appellant fails to demonstrate the prejudice created by use of a plural term approved in the MAI. Appellant's second challenge to the verdict-directing instruction is without merit.
V.
Improper Comments
A.
Appellant's last assignments of error concern the trial court's refusal to grant a mistrial upon alleged improper comments made by Pierce's counsel during opening statement and closing argument. We first consider the comments made during closing argument.
Toward the end of his closing, Pierce's counsel remarked "when you're done you can send a message to the utility world." This statement properly drew an immediate objection. The trial court sustained the objection and instructed the jury to disregard the remark; however, the court refused to sustain appellant's motion for a mistrial.
The decision to grant a mistrial lies in the sound discretion of the trial court. Absent a manifest abuse of discretion, an appellate court will not interfere with the trial court's decision. Hoene v. *779 Associated Dry Goods Corporation, 487 S.W.2d 479, 486 (Mo.1972); Smith v. Courier, 531 S.W.2d 743, 746 (Mo. banc 1976). However, Missouri courts have long shown displeasure with "send a message" arguments in cases where punitive damage are not sought. Accord, Smith, 531 S.W. 2d at 747; Fisher v. McIlroy, 739 S.W.2d 577, 581 (Mo.App.1987). When the message argument becomes the theme of the entire closing, it constitutes reversible error. See Smith 531 S.W.2d at 748; Fisher, 739 S.W.2d at 582.
Wisdom gathered from long experience tells us that trial courts are better positioned to assess the amount of prejudice injected by admittedly improper arguments. Graves v. May Department Store Co., 153 S.W.2d 778, 785 (Mo.App.1941). Given the cold record on appeal, appellate courts of this state uniformly uphold trial courts' determinations of the prejudice injected by "send a message" arguments. See, e.g., Smith, 531 S.W.2d at 747 (trial court affirmed in granting new trial); Graves, 153 S.W.2d at 785 (trial court upheld in refusing mistrial); Dickerson v. St. Louis Southwestern Ry. Co., 674 S.W.2d 165, 173 (Mo.App.1984) (trial court upheld in refusing mistrial); Fisher, 739 S.W.2d at 582 (trial court's order granting new trial affirmed).
Here, Pierce's counsel danced dangerously close to reversible error. However, the quick objection by appellant's able counsel and the trial court's firm instruction to the jury prevented prejudice. The trial court's refusal to grant a mistrial was not an abuse of discretion.[4]Hoene, 487 S.W.2d at 484. Appellant's point is denied.
B.
Appellant's final assignment of error concerns a comment by Pierce's counsel in opening statement and a question posed to a witness concerning appellant's policy of marking guy wires. In opening statement, Pierce's counsel suggested "[T]his company never made a policy of putting guy markers on their wires." Appellant's objection was sustained. In direct examination, Pierce's counsel asked a witness about any changes in the cooperative's procedure as a result of the trouble tickets concerning farm machinery striking unmarked guy wires. The trial court sustained appellant's objection but overruled the motion for mistrial. Appellant charges that the cumulative effect of these comments suggested to the jury that appellant deserved to be punished.
Again, we defer to the trial court's discretion in gauging the prejudicial effect of attorney's comments. Hoene, 487 S.W.2d at 486. However, we are not convinced that Pierce's attempt to introduce evidence of appellant's inspection policy was a veiled attempt to claim punitive damages. In a bench conference prior to the second day of trial, Pierce's counsel explained he was attempting to offer evidence to show the cooperative's knowledge of the unmarked guy wires as well as their failure to exercise ordinary care in inspecting and marking the wires. The fact that Pierce did not seek punitive damages did not relieve him of the burden of proving appellant's failure to meet its duty to prevent a foreseeable harm.
As proof of appellant's failure of care, Pierce was able to introduce evidence showing appellant's policy of inspecting their lines with superseded check forms. This evidence of appellant's policy went to the very heart of Pierce's case. The fact that this evidence made out a convincing case of negligence does not mean it was only admissible in a punitive damage case.
We find these comments went to the issue of the cooperative's notice of the danger and a policy which prevented it from exercising ordinary care. The comments were not in error and therefore there can be no prejudice.
*780 VI.
The judgment of the trial court is affirmed.
BILLINGS, C.J., and BLACKMAR, WELLIVER, RENDLEN, HIGGINS, JJ., and GAERTNER, Special Judge, concur.
COVINGTON, J., not sitting.
NOTES
[1] The guy wire, stub pole and the cable struck by the car all were merely support structures and did not carry electrical current. Since the circumstances of this accident did not involve the inherently dangerous properties of electricity, the "highest degree of care" standard which is utilized when electricity is the agent of injury is not applicable. Poumeroule v. Postal Telegraph & Cable Co., 167 Mo.App. 533, 152 S.W. 114 (1912). The appropriate standard is ordinary care.
[2] The 1984 edition of the National Electrical Safety Code provided that only guy wires exposed to "pedestrian traffic" required a "substantial and conspicuous marker not less than 8 feet long."
[3] MAI 22.03 states:
Verdict DirectingInvitee Injured
Your verdict must be for plaintiff if you believe:
First, there was (here describe substance on floor which caused the fall) on the floor of defendant's store and as a result the floor was not reasonably safe for customers, and
Second, plaintiff did not know and by using ordinary care could not have known of this condition, and
Third, defendant knew or by using ordinary care could have known of this condition, and
Fourth, defendant failed to use ordinary care to [remove it] [barricade it] [warn of it], and
Fifth, as a direct result of such failure, plaintiff was injured.
MAI 22.03 is the pattern instruction for a business invitee slip and fall case. Modifications necessarily had to be made to fit this instruction into the fact pattern of this case.
[4] Appellant also complains that Pierce's counsel remarked, "When farmers here in Buchanan County are injured, they will be fully compensated." The argument drew an objection but was overruled. The trial court determined that the argument was not objectionable, and this Court cannot say that the trial court abused its discretion in making that determination. Dickerson v. St. Louis Southwestern Ry. Co., 674 S.W.2d 165, 173 (Mo.App.1984). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624517/ | 769 S.W.2d 339 (1989)
RED WING SHOE COMPANY, INC., Appellant,
v.
SHEARER'S, INC., Appellee.
No. 01-88-00943-CV.
Court of Appeals of Texas, Houston (1st Dist.).
April 6, 1989.
*340 Arnold Anderson Vickery, E. Landers Vickery, Vickery & Kilbride, Annette T. Kolodzie, Michael R. Waller, Sheinfeld, Maley & Kay, Houston, for appellant.
Johnny J. Williams Jr., Charles A. Botschen, Houston, for appellee.
Before EVANS, C.J., and DUGGAN and O'CONNOR, JJ.
OPINION
EVANS, Chief Justice.
Red Wing Shoe Company, Inc. appeals from a permanent injunction requiring that it resume the sale of its shoe products to Shearer's, Inc. The case was submitted to the trial court on stipulated facts. See Tex.R.Civ.P. 263.
Two questions are presented in this appeal: (1) Does the federal "rule of reason" standard apply in determining the legality of restraints of trade or commerce under the Texas Free Enterprise and Antitrust Act of 1983, Tex.Bus. & Com.Code Ann. secs. 15.01-15.26 (Vernon Supp.1988); and (2) Does the above-mentioned antitrust Act prohibit Red Wing, a manufacturer, from unilaterally discontinuing its sales relationship with a customer, Shearer's, who refused to respect the manufacturer's territorial distribution restrictions?
The trial court concluded that the 1983 Act did not adopt the federal "rule of reason" analysis for vertical non-price restraints, and did not overrule Texas case law prohibiting such restraints as illegal per se. The court also concluded that the 1983 Act prohibited Red Wing from unilaterally ending its sales relationship with Shearer's.
We are of the opinion that the trial court's rulings are erroneous, and we reverse the trial court's judgment and order the permanent injunction dissolved.
Red Wing manufactures boots and shoes. Shearer's is an independent retailer that sells boots and shoes at 20 locations *341 throughout Texas. Shearer's sells several brands of boots and shoes in addition to the Red Wing brand, but it has carried Red Wing products since its first store opened in 1956. Because Shearer's carries several brands of shoes, including Red Wing's, it is a "branded account" within the nomenclature of the trade. Sales to branded accounts are final, and title to the merchandise passes to the retailer at the time of the wholesaler's sale.
During the early 1970's, Red Wing established a new policy of opening official Red Wing shoe stores in Texas. Some of these stores were company-owned, and others were dealer-owned. Some of these new Red Wing shoe stores competed with Shearer's and other shoe retailers. Under Red Wing's marketing strategy, it established a policy of authorizing specific store locations to sell Red Wing merchandise. Under this policy, Red Wing would not usually authorize a second retail outlet within a certain protected area around one of its existing stores.
A number of Shearer's stores were never approved as authorized "branded accounts." Nevertheless, Shearer's transferred Red Wing products from its authorized stores to sell merchandise at certain Shearer's stores that were not authorized. All of Shearer's unauthorized stores are located in geographical areas where an official Red Wing shoe store or an authorized branded account already exists, or where Red Wing salesmen had been making other arrangements to cover the market.
In 1986, Red Wing asked Shearer's to remove Red Wing products from unauthorized store locations. Red Wing notified Shearer's that, unless it removed all Red Wing products that had been transferred from authorized to unauthorized store locations, Red Wing would stop doing business with Shearer's.
Shearer's refused to comply. In September 1987, because of Shearer's continued refusal to comply with Red Wing's policies, Red Wing unilaterally ended its business relationship with Shearer's. Shearer's then filed this suit, alleging that Red Wing's conduct violated the Texas Free Enterprise and Antitrust Act of 1983.
After hearing the stipulated facts, the trial court granted a permanent injunction requiring Red Wing to resume sales of its products to Shearer's. The trial court concluded that: (1) the Texas Free Enterprise and Antitrust Act of 1983 did not adopt the federal "rule of reason" analysis for vertical non-price restraints and did not overrule prior Texas case law prohibiting such restraints as illegal per se; and (2) the Texas antitrust laws prohibit a manufacturer from unilaterally refusing to deal with a customer who refuses to respect a manufacturer's territorial distribution restrictions.
In its first point of error, Red Wing argues that the trial court erred in holding that the 1983 Act did not require analysis of vertical non-price restraints under the same "rule of reason" that federal courts apply.
Contracts, combinations, and conspiracies in restraint of trade are of two types, horizontal or vertical. Muenster Butane, Inc. v. Stewart Co., 651 F.2d 292, 295 (5th Cir.1981). Horizontal combinations are cartels or agreements among competitors that restrain competition among enterprises at the same level of distribution. These are ordinarily illegal per se. Catalano, Inc. v. Target, Inc., 446 U.S. 643, 647, 100 S. Ct. 1925, 1927, 64 L. Ed. 2d 580 (1980).
Vertical restraints are those imposed by persons or firms further up the chain of distribution of a specific product than the enterprise restrained. Muenster Butane, 651 F.2d at 295. The classic vertical restraint case is one in which a distributor imposes certain restrictions on its dealer, as in this case, where Red Wing imposed territorial restrictions on Shearer's.
Red Wing's restrictions may also appear to be horizontal, because Red Wing and Shearer's both compete to sell Red Wing products. However, the Supreme Court has addressed this situation and held that conspiracies between a manufacturer and its distributors are only treated as horizontal *342 when the source of the conspiracy is a combination of the distributors. United States v. Arnold, Schwinn & Co., 388 U.S. 365, 372-73, 87 S. Ct. 1856, 1862, 18 L. Ed. 2d 1249 (1967). Here, if there was a plan to eliminate Shearer's by imposing territorial restrictions on the sale of Red Wing shoes, that plan originated with the manufacturer, which established company stores for that purpose. Consequently, antitrust law treats the conspiracy as a vertical restraint. H & B Equip. Co. v. International Harvester, 577 F.2d 239, 245-46 (5th Cir.1978).
The "rule of reason" is a standard of analysis applied to determine the legality of restraints of trade or commerce. Under this rule, the factfinder weighs all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition. Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49, 97 S. Ct. 2549, 2557, 53 L. Ed. 2d 568 (1977). One of the most frequently cited statements of the rule of reason appears in Chicago Board of Trade v. United States, 246 U.S. 231, 238, 38 S. Ct. 242, 243, 62 L. Ed. 683 (1918), where the Court wrote:
The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts. This is not because a good intention will save an otherwise objectionable regulation or the reverse; but because knowledge or intent may help the court to interpret facts and to predict consequences.
Per se rules of illegality are considered appropriate only when they relate to conduct that is manifestly anticompetitive. GTE, 433 U.S. at 50, 97 S.Ct. at 2557. As the Supreme Court explained in Northern Pac. Ry. v. United States, 356 U.S. 1, 5, 78 S. Ct. 514, 518, 2 L. Ed. 2d 545 (1958), "There are certain agreements or practices which, because of their pernicious effect on competition and lack of any redeeming virtue, are conclusively presumed to be unreasonable and therefore illegal, without elaborate inquiry as to the precise harm they have caused or the business excuse for their use."
Red Wing contends that the 1983 amendment to the Texas antitrust laws overruled former law holding vertical non-price restrictions illegal per se. This issue is determinative of the case, for the parties have stipulated that if the federal rule of reason analysis applies, instead of a standard of per se illegality, Shearer's is not entitled to injunctive relief.
Because this case involves statutory construction, a brief comparison of the former statute with the amended statute is in order. Before 1983, the Texas antitrust statute prohibited monopoly, trust, and conspiracy in restraint of trade, and further, contained a restrictive "laundry list" of prohibited conduct. See Texas Free Enterprise and Antitrust Act of 1983, ch. 519, 1983 Tex.Gen.Laws 3010 repealed by Tex.Bus. & Com.Code Ann. sec. 15.01-15.26 (Vernon Supp.1988).
Former section 15.03(a)(1) provided: "It is a conspiracy in restraint of trade for two or more persons engaged in buying or selling tangible personal property to agree not to buy from or sell to another person tangible personal property." Texas courts construed this statute to prohibit vertical non-price distribution restraints as per se violations of the state's antitrust laws. See Climatic Air Distrib. v. Climatic Air Sales, Inc., 162 Tex. 237, 241, 345 S.W.2d 702, 703-704 (1961).
The enactment of the 1983 Act constituted the first substantial change in Texas antitrust law since 1889. Besides being outdated, Texas antitrust law was inconsistent with developments in federal antitrust law. The 1983 Act was designed to correct this inconsistency by bringing uniformity *343 to state and federal interpretations of the antitrust laws.
Former section 15.04, upon which the earlier Texas case law of non-price vertical restraints relied, was replaced by section 15.05. This new section adopted the language of the federal Sherman Antitrust Act, and reads in part:
Sec. 15.05. Unlawful Practices
(a) Every contract, combination, or conspiracy in restraint of trade of commerce is unlawful.
Other sections of the 1983 Act are also taken directly from the federal law. Moreover, the Texas Legislature not only used language tracking that of the federal antitrust statute in the substantive portions of the 1983 Act, but it also included a clause specifying uniformity of construction between the federal and Texas statutes. Former section 15.04, repealed by the 1983 Act, was rewritten and now states:
Sec. 15.04. Purpose and Construction
The purpose of this Act is to maintain and promote economic competition in trade and commerce occurring wholly or partly within the State of Texas and to provide the benefits of that competition to consumers in the state. The provisions of this Act shall be construed to accomplish this purpose and shall be construed in harmony with federal judicial interpretations of comparable federal antitrust statutes to the extent consistent with this purpose.
The express words of the 1983 Act, as well as its legislative history, support the conclusion that the Texas legislature was taking a deliberate step toward uniformity with federal antitrust law.
Federal law in this area is well settled. In the GTE case, 433 U.S. at 59, 97 S.Ct. at 2562, the United States Supreme Court overruled United States v. Arnold, Schwinn & Co., 388 U.S. 365, 87 S. Ct. 1856, 18 L. Ed. 2d 1249 (1967), which held vertical non-price restraints illegal per se. In GTE, the plaintiff retailer contended that it was not obligated to return secured merchandise to the manufacturer following termination of its franchise. According to the plaintiff, the original franchise agreement, which provided that each franchisee could sell the manufacturer's product only from the location at which the retailer was franchised, violated section one of the Sherman Antitrust Act, and therefore was unenforceable.
The United States Supreme Court rejected the premise that every territorial distribution restriction was illegal per se. Instead, the Supreme Court held that each restriction should be analyzed on its facts to determine whether it restricted competition or, alternatively, promoted competition. GTE, 433 U.S. at 58-59, 97 S.Ct. at 2561-2562.
Critical to the Supreme Court's analysis is the difference between inter- and intra-brand competition. Inter brand competition is competition among different manufacturers, as among Red Wing and other shoe makers. Intra brand competition is competition among retailers to sell the same manufacturer's product, as among Shearer's and other Red Wing distributors. GTE, 433 U.S. at 51 n. 19, 97 S.Ct. at 2558 n. 19. The Supreme Court reasoned that a manufacturer's territorial distribution restrictions may have a negative effect on intrabrand competition, but this effect may be offset by competition in the marketplace from competing brands of the same product. Thus, if the interbrand market is competitive, intrabrand restraints, such as territorial sales restrictions, do not necessarily restrict competition. The Supreme Court reasoned that when there is competition from other brands, in that case among other television manufacturers, "it provides a significant check on the exploitation of intrabrand market power because of the ability of consumers to substitute a different brand of the same product." GTE, 433 U.S. at 51, 97 S.Ct. at 2558.
The Supreme Court recently reaffirmed its application of the rule of reason to vertical non-price restraints in Business Electronics Corp. v. Sharp Electronics Corp., 485 U.S. 717, 108 S. Ct. 1515, 99 L. Ed. 2d 808 (1988).
While there has been little treatment of the 1983 Act by Texas courts, federal *344 courts sitting in Texas have interpreted the 1983 Act to require application of the federal rule of reason to vertical non-price restrictions. In Henderson Broadcasting Corp. v. Houston Sports Ass'n., 647 F. Supp. 292, 298 (S.D.Tex.1986), the court noted that the relevant sections of the 1983 Act mirror the language of sections one and two of the Sherman Antitrust Act. The court concluded, "The Texas legislature expressly intended that the Texas antitrust sections be construed in harmony with federal judicial interpretations.... As a result, the analysis under Sections One and Two of the Sherman Act applies equally to the Plaintiff's state antitrust claims."
Shearer's concedes that the 1983 Act was intended by the legislature to update the Texas antitrust laws and harmonize them with federal laws. However, Shearer's disputes that application of the rule of reason analysis to vertical restraints imposed by a manufacturer upon one of its distributors is consistent with the stated purpose of the Texas act. According to Shearer's, the primary concern of federal antitrust laws is maintaining interbrand competition. Shearer's argues that the purpose of the Texas 1983 Act is not only to maintain economic competition, but also to provide the benefit of that competition to consumers. Thus, Shearer's argues, if consumers would be hurt by having to buy Red Wing shoes from a single location at a higher price, then Red Wing's attempt to restrict sales to designated locations would be per se unreasonable, even under federal law.
Shearer's argument fails to take into account the effect of interbrand competition, a necessary inquiry under the Supreme Court's holding in GTE. As the Court noted, a competitive market in other brands of shoes forces a manufacturer of the same product to remain competitive in order to retain customer sales. Thus, a manufacturer's decision to adopt a more efficient marketing strategy for the sale of its goods does not necessarily imply harm to the consumer. Further, without proof of such "pernicious harm," the restraints do not fall into the same rigid category of conduct that is illegal per se, such as price restraints on products.
Shearer's nevertheless argues that the goals of the 1983 Act can best be accomplished by having a rebuttable presumption that conduct which was previously a per se violation under the former statute remains unreasonable per se. Shearer's has cited no authority to support its argument, and indeed, existing case law is to the contrary.
The legislative history, the specific language, and the express provision in the 1983 Act, all evidence the legislature's intent to bring the Texas antitrust laws into harmony with federal rules. Section 15.04 of the Act provides in part:
The provisions of this Act shall be construed to accomplish this purpose and shall be construed in harmony with federal judicial interpretations of comparable federal antitrust statutes to the extent consistent with this purpose. (Emphasis added.)
The federal law is well-settled: vertical non-price restraints are no longer illegal per se, but are to be analyzed under the rule of reason. Red Wing's conduct in this case, therefore, must be examined under the rule of reason applied by the federal law and adopted by the Texas 1983 Act. Because the parties have stipulated that Shearer's is not entitled to injunctive relief if the rule of reason is applied to the facts of this case, it is unnecessary to make this examination.
The appellant's first point of error is sustained.
In its second point of error, Red Wing argues that, in the alternative, the trial court erred in holding that a manufacturer does not have the right unilaterally to end a sales relationship with a customer.
Shearer's alleges that Red Wing violated section 15.05(a) of the 1983 Act because its conduct "constitutes an unlawful contract, combination or conspiracy, in restraint of trade or commerce." Under section 15.05(a), there must be concerted action by two or more persons. Thus, Shearer's faces the threshold requirement of identifying a co-conspirator. Here, it is *345 undisputed that Red Wing's refusal to deal with Shearer's was unilateral. Shearer's has not claimed that Red Wing acted in concert with anyone else in deciding to discontinue selling its shoes to Shearer's, a fact that distinguishes this case from United States v. Topco Assoc., Inc., 405 U.S. 596, 92 S. Ct. 1126, 31 L. Ed. 2d 515 (1972), cited by appellant. Further, Shearer's cannot claim collusion between Red Wing manufacturers and distributors of its product because a company cannot conspire with its own employees as a matter of law. H & B Equip. Co., 577 F.2d at 244. This eliminates the possibility that a company store or its manager might be a co-conspirator. Id.
The decision to terminate the business relationship with Shearer's was made by Red Wing alone. Here, there was no contract between the two, only an open account that was subject to termination at will.
Texas courts have long recognized the right of a manufacturer unilaterally to discontinue a sales relationship with a customer. In Ford Motor Co. v. State, 142 Tex. 5, 11, 175 S.W.2d 230, 234 (1943), the Texas Supreme Court held:
There is nothing in [Texas antitrust] laws that requires a manufacturer to sell its manufactured product to any dealer or purchaser who wishes to buy same. To the contrary, such manufacturer may sell, or refuse to sell, at its pleasure.
The court reiterated its decision in Sherrard v. After Hours, Inc., 464 S.W.2d 87, 89 (Tex.1971), stating, "A manufacturer may sell his product to whomever he pleases, and he may choose to place only one or two or three distributors in any particular city."
Red Wing's decision to stop selling to Shearer's was made unilaterally and independently, in furtherance of its marketing policies. Its decision to discontinue its open-account sales relationship with Shearer's did not violate the 1983 Act.
Appellant's second point of error is sustained.
We reverse the trial court's judgment granting Shearer's permanent injunction and order the permanent injunction dissolved. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624557/ | 522 So. 2d 533 (1988)
Connie CALL, As Personal Representative of the Estate of Buck Call, Deceased, Appellant,
v.
Antonio TIRONE, M.D., and Ira Joel Abramson, M.D., Appellee.
No. 86-2950.
District Court of Appeal of Florida, Third District.
March 29, 1988.
*534 Zuckerman, Spaeder, Taylor & Evans and G. Richard Strafer and Ronald B. Ravikoff and Humberto J. Pena, Coral Gables, for appellant.
Lanza & O'Connor, Nancy Little Hoffman, Ft. Lauderdale, for appellee Joel Abramson, M.D.
Lombana & Bass and Judith A. Bass, Miami, for appellee Antonio Tirone, M.D.
Before BASKIN, FERGUSON and JORGENSON, JJ.
PER CURIAM.
Four days after a gallbladder operation, Buck Call died from a fatal attack of pulmonary embolism when blood clots blocked the flow of blood through to his heart. His widow brought this action alleging malpractice by the treating physicians. This appeal is from a jury verdict finding no negligence on the part of the defendant physicians.
An issue at trial was whether the physicians should have administered blood-thinning medication, specifically Heparin, to prevent the fatal post-operation clotting. Both parties necessarily relied on the testimony of experts.
Mrs. Call argues that a new trial should be granted because defense counsel, over her repeated objections, was permitted to cross-examine her primary expert using medical writings critical of Heparin without establishing the requisite foundation as to the reliability and authoritativeness of the articles. It is settled by statute, case law, and treatises, that statements contained in medical literature cannot be used to cross-examine a witness unless the literature is established to be a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. § 90.706, Fla. Stat. (1985); Hemingway v. Ochsner Clinic, 608 F.2d 1040 (5th Cir.1979); Tallahassee Memorial Regional Medical Center v. Mitchell, 407 So. 2d 601 (Fla. 1st DCA 1981); see also Medina v. Variety Children's Hosp., 438 So. 2d 138 (Fla. 3d DCA 1983); M. Graham, Handbook of Fla. Evidence, § 90.706 (1987); Annotation: Use of Medical or Other Treatise In Cross-Examination of Expert Witness, 60 A.L.R. 2d 77 (1958). The record reflects that defense counsel on four occasions improperly called the jury's attention to medical articles without first establishing the authoritativeness of those treatises.
In one instance the plaintiff's expert, Dr. Kanarek, was asked whether he was familiar with a study entitled "Failure of Low Dose Heparin To Prevent Significant Thromboembolic Complications In High Risk Surgical Patients" which, allegedly, was conducted in a South African hospital. Dr. Kanarek responded that he was not familiar with the article and asked to see a copy of it. Defense counsel then stated that he did not have a copy of the article. An objection was overruled and a motion to strike the question was denied; defense counsel was instructed to "go ahead" with cross-examination. In the course of that cross-examination defense counsel concluded that although he had no copy of the article he was "just going by the title" and that "it's pretty clear to me it says failure of." The point was thus made, based on the medical article that had not been authenticated *535 or established as authoritative, that administering Heparin would not have prevented the deceased's fatal embolism. Mrs. Call contends that defense counsel had no intent to authenticate the actual existence of the treatise.
In another instance defense counsel asked Dr. Kanarek if he was familiar with an article published in the journal Cardiovascular Surgery entitled "Anti-Thrombosis: Prevention and Heparinized Complications." Before Dr. Kanarek could answer counsel added that the article was "a seven year survey by cardiovascular and general surgeons operating in a seven year period [between] 1976 and 1982." Dr. Kanarek answered that he was not familiar with the study or the article. In response to further questions, that made implicit reference to the same article, Dr. Kanarek responded that while studies might exist showing Heparin-related complications, he would question their research methodology. Defense counsel's next question then referred directly to the article:
Q. Let me ask you if I may: How about a seven year period in which 5,837 operations were performed in the Department of General Vascular Surgery?
Again by the question defense counsel impermissibly placed more of the substance of the article before the jury. Nevertheless, another plaintiff objection was overruled.
On a third occasion counsel for one of the defendants attempted to cross-examine Dr. Bolton, an expert witness for the other defendant, and in clear reference to the same article asked Dr. Bolton:
Q. In fact, it wouldn't surprise you a bit that various journals have cited that in studying Heparin [versus] non-use of Heparin that more patients have died from pulmonary thromboembolism that have been Heparinized than those who did not have Heparin?
The trial court sustained the objection on grounds that the question was "too broad." Only then was the doctor asked specifically about the Cardiovascular Surgery article and given an opportunity to answer that he had never read it.
Finally, the unauthenticated medical writings became a feature in closing arguments to the jury. For example, the defense argued:
Dr. Kanarek in response to Mr. Womack said your study isn't good enough for me. I want to see somebody over 40. I want to see a lot of people in that study and I want to see a control group of those who they gave Heparin to and those they didn't. Ladies and gentlemen, I had such an article. I had such a study of over 3,000 patients and I stood right here.
Plaintiff's objection to the argument was overruled.
Neither of the two articles at the center of the controversy was established to be authoritative by either a witness or a finding of the court. The calculated and egregious violation of the evidentiary rule was indeed harmful, requiring a new trial. Because of our holding on this point, there is no need to reach other issues raised in this appeal.
Reversed and remanded for a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624575/ | 522 So. 2d 1254 (1988)
Claude BRISTER
v.
George WHITFIELD, Administrator, Louisiana Office of Employment Security and TGI Friday's.
No. CA 8359.
Court of Appeal of Louisiana, Fourth Circuit.
March 10, 1988.
David H. Williams, New Orleans Legal Assistance Corp., New Orleans, for plaintiff.
James A. McGraw, Denise A. Nagel, Frank T. Scott, Jr., Bernard J. Francis, Sr., Ollivette E. Mencer, V. Broussard Guillory and Sandra A. Broussard, Office of Employment Sec., Baton Rouge, for defendants.
*1255 Before BARRY, ARMSTRONG and PLOTKIN, JJ.
PLOTKIN, Judge.
Defendant employer appeals a district court judgment favoring the claimant employee, which reversed a denial of unemployment compensation benefits by the Board of Review of the Louisiana Office of Employment Security. We affirm the judgment of the district court.
Claimant Claude Brister was discharged by defendant, Friday's, for "habitual tardiness" after four months of employment. Brister filed for unemployment benefits after he was discharged from a second job that he held at the same time he worked for Friday's. His application for unemployment benefits was denied by the Office of Employment Security, which found he was disqualified because he had been discharged for "misconduct connected with his employment." LSA-R.S. 23:1601(2). That decision was affirmed by both an appeals referee, who conducted a hearing at which both sides presented testimony, and the board of review. The decision of the board was then reversed by the district court, which awarded Brister employment benefits in accordance with LSA-R.S. 23:1472 et seq. The trial court gave no reasons for judgment. The defendants filed this appeal.
The record contains copies of two written reports of tardiness completed by managers of the establishmentone dated August 9, 1985, which was signed by Brister, and one dated July 30, 1985, which was not signed by Brister. The discharge occurred when Brister was again tardy on August 16, 1985. Brister offered two reasons at trial for his tardiness: (1) the fact that he had no car and commuted from his home in New Orleans East to the restaurant in Metairie by bus and (2) the fact that he was trying to hold down two full time jobs simultaneously. During the period the tardies were accrued, claimant was allegedly getting home from the second job at about 4 a.m. and he was expected to report to work at Friday's at 8 a.m. The employer's representative at the hearing, General Manager Randy McKay, who hired Brister, acknowledged that Brister informed him of these circumstances before he was hired. Brister had previously been an employee at the restaurant.
Brister contested the validity of the written tardy report dated July 30, 1985, saying the reason he never signed the slip was that the tardy was "excused" when the manager who completed it learned that Brister had in fact contacted Friday's personnel to let them know he would be late that day. The record contains a letter to the board of review in which Brister stated that he was under the impression that his being tardy would not be a problem so long as he reported the fact that he would be late to Friday's. He stated that his immediate supervisor, the kitchen manager, told him that it was all right for him to be late so long as he called. He also stated that no one had ever said anything negative to him about tardiness or anything else during his 90-day probationary period. None of these contentions of the claimant are seriously contested by the employer in the record.
The appeals referee made the following pertinent findings of fact following the hearing in the case:
The claimant worked for the named employer as a line cook for approximately four months. He was last employed August 16, 1985 at a salary rate of $6.00 per hour.
During the course of the claimant's employment he was excessively late for work. He was counseled on several occasions, both verbally and in writing by his immediate supervisor regarding his continued tardiness. (See Employer Exhibits 1 & 2) His tardiness continued following these warnings and as a result he was discharged.
The referee then made the following findings of law:
The facts presented show the claimant was discharged from his employment because of continued tardiness following warnings. His actions were contrary to the best interest of the employer and his separation occurred under disqualifying *1256 conditions as originally determined by the Agency.
The employment compensation statutes strictly limit judicial review of Board determinations as follows:
In any proceedings under this Section the findings of the Board of Review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.
LSA-R.S. 23:1634.
This court has previously held that the above statute limits judicial review in cases like the one at hand to two essential questions: (1) whether the board's decision was based on sufficient competent evidence and (2) whether the findings of fact justify the decision of the board as a matter of law. Black v. Sumrall, 413 So. 2d 252, 252 (La. App. 4th Cir.1982). In this case, although the board's factual findings are based on sufficient competent evidence, the findings of fact do not justify disqualification as a matter of law.
The standard for disqualification from unemployment compensation benefits under LSA-R.S. 23:1601(2) is much higher than the standard for finding that the employer was justified in discharging the employee for his actions. Although the board correctly found that Friday's decision to discharge Brister was justified, it does not necessarily follow that Brister can be disqualified from receipt of unemployment compensation benefits.
In order to disqualify an employee from receipt of unemployment benefits, the record must support a finding that the employee was discharged for "misconduct connected with his employment." This circuit has accepted the following description of the requisite "misconduct":
... an act of willful or wanton disregard of the employer's interest; a deliberate violation of the employer's rules; a disregard of standards of behavior which the employer has a right to expect of his employee; or negligence in such degree or recurrence as to manifest culpability, wrongful interest, or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer.
Black, 413 So.2d at 253, citing Atkins v. Doyal, 274 So. 2d 438, 440 (La.App. 1st Cir. 1973). Additionally, the Louisiana Supreme Court has stated that "[t]he type of behavior which is considered `willful misconduct' is intentional wrong behavior." Charbonnet v. Gerace, 457 So. 2d 676, 678 (La.1984). (Emphasis added.)
Because the unemployment insurance statutes are designed to serve a beneficial purpose, the term "misconduct" is construed by the courts of this state in favor of awarding benefits rather than disqualification. Id. Additionally, the employer bears the burden of proving disqualifying "misconduct" because of intentionally wrongful behavior by a preponderance of the evidence. Banks v. Administrator of the Dept. of Employment Security, 393 So. 2d 696, 699 (La.1981).
The record in the instant case fails to establish that Brister's tardiness was related in any way to an intentional failure to comply with the employer's rules. The record indicates, in fact, that the employer was aware of the circumstances under which Brister would be working and that he was aware that Brister might be tardy on occasion because of factors beyond his control, i.e. the Greater New Orleans area public transportation system. Under this record, the employer failed to meet his burden of proof.
We find that the claimant's conduct clearly does not fall within the definition of misconduct contemplated by LSA-R.S. 23:1601(2). Claimant therefore is not disqualified from receipt of unemployment insurance. For the above and foregoing reasons, the judgment of the lower court is affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624571/ | 522 So. 2d 1028 (1988)
FORTUNE INSURANCE COMPANY, Appellant,
v.
Angel E. BRITO, Appellee.
No. 87-299.
District Court of Appeal of Florida, Third District.
April 5, 1988.
*1029 O'Malley and Sternberg and Terence T. O'Malley (Ft. Lauderdale), for appellant.
Horton, Perse & Ginsberg and Arnold Ginsberg, Stephen Nelson, Miami, for appellee.
Before BARKDULL, HENDRY and FERGUSON, JJ.
PER CURIAM.
Fortune Insurance Company appeals from an order awarding attorney's fees to the insured, Angel Brito. Following an automobile accident Brito filed a claim under his PIP policy with Fortune. When coverage was denied Brito initiated a lawsuit against Fortune. Before trial Fortune paid Brito $2,000 on the $10,000 policy after applying the $8,000 deductible provision. Brito filed a motion for attorney's fees pursuant to section 627.428, Florida Statutes (1983). After a hearing the court awarded $8,000 in fees to Brito's attorney.
In disputing the attorney's fee award Fortune makes two arguments. Fortune first contends that because no judgment was ever entered against the insurer, the trial court lacked the authority to enter an award for attorney's fees. Fortune's second point is that even if there was authority to award attorney's fees, the court's failure to make specific findings justifying an $8,000 fee award on a $2,000 recovery, requires a reversal. We agree with Fortune's second point.
Whether a court may award attorney's fees to an insured who has settled his claim against his insurance company is a question that was decided by the Florida Supreme Court in Wollard v. Lloyd's and Companies of Lloyd's, 439 So. 2d 217 (Fla. 1983). In interpreting section 627.428, Florida Statutes (1983),[1] the court held that in order to discourage litigation and encourage prompt settlement "the payment of a claim is ... the functional equivalent of a confession of judgment." Wollard, 439 So.2d at 218. Fortune could not escape liability for attorney's fees under the statute simply by settling the suit before a judgment was entered.
In granting the insured's motion for attorney's fees, however, the trial judge failed to make findings on the record or in *1030 the final order in support of the $8,000 fee award. The absence of specific findings in support of the award requires a remand for an evidentiary hearing. Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985); Travelers Indem. Co. v. Sotolongo, 513 So. 2d 1384 (Fla. 3d DCA 1987); Lake Tippecanoe Owners Ass'n v. Hanauer, 494 So. 2d 226 (Fla. 2d DCA 1986).
Affirmed in part, reversed in part, and remanded for further proceedings.
NOTES
[1] Section 627.428(1) provides:
(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured's or beneficiary's attorney prosecuting the suit in which the recovery is had. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624552/ | 522 So. 2d 253 (1988)
PARSONS STEEL, INC., et al.
v.
Jere L. BEASLEY and Frank M. Wilson.
Jere L. BEASLEY and Frank M. Wilson
v.
PARSONS STEEL, INC., et al.
86-787, 86-851.
Supreme Court of Alabama.
March 4, 1988.
*254 Donald R. Harrison, Montgomery, for appellants/cross-appellees.
Oakley Melton, Jr., and James E. Williams of Melton & Espy, Montgomery, for appellees/cross-appellants.
PER CURIAM.
These appeals arise from a suit against attorneys by former clients, alleging fraud, breach of contract, and professional malpractice. Following motions for summary judgment by the defendant attorneys on all counts, the plaintiffs moved for summary judgment on the breach of contract claim. The trial court granted summary judgment in favor of the defendants on the fraud count only and denied the plaintiffs' motion for summary judgment on the contract claim. Plaintiffs appeal from the defendants' summary judgment on the fraud claim. They also attempt to appeal from the denial of summary judgment on the contract claim, and the defendants attempt to cross-appeal from the denial of summary judgment as to the remaining counts of the complaint.
Facts
The defendants/appellees are Montgomery attorneys Jere L. Beasley and Frank M. Wilson (the law firm of "Beasley and Wilson"). Beasley was retained in 1979 for the purpose of representing Jim D. Parsons, Melba L. Parsons, and Parsons Steel, Inc. ("the Parsonses") in some civil litigation related to the Parsonses' business affairs.[1] Jim D. Parsons is the president of Parsons Steel, Inc.; he and Melba L. Parsons are husband and wife and, along with Parsons Steel, Inc., are the plaintiffs/appellants in the matter at bar.
In February 1979, Beasley, on behalf of the Parsonses, filed an action in Montgomery County Circuit Court seeking recovery for fraud against First Alabama Bank ("First Alabama"), Edward Herbert (a bank officer), Michael Orange, and O.S.I., Inc. It was alleged that through fraudulent inducements of all of the defendants Jim Parsons had allowed defendant Michael Orange to take control of and eventually assume complete ownership over a subsidiary company of Parsons Steel, Inc. The subsidiary company is known as Parsons Steel Industries, Inc. As against First Alabama the complaint was subsequently amended to include a claim under the Uniform Commercial Code that a foreclosure sale by First Alabama, disposing of the assets of Parsons Steel Industries, Inc., was commercially unreasonable.
In April 1979, Parsons Steel Industries, Inc. (the subsidiary of Parsons Steel, Inc.) was adjudicated an involuntary bankrupt by the United States Bankruptcy Court for the Middle District of Alabama. The trustee in bankruptcy, A. Pope Gordon, was joined as a party plaintiff in the pending state court fraud action in October 1979 upon motion of defendant First Alabama.
*255 On January 28, 1983, just prior to the commencement of trial of the state court fraud action, all of the plaintiffs (Jim and Melba Parsons, Parsons Steel, Inc., and the trustee in bankruptcy of Parsons Steel, Inc.) entered into a written pro tanto release and settlement agreement with defendants Michael Orange and O.S.I., Inc.[2] Under the terms of this settlement agreement, a total sum of $200,000 was paid by Orange and O.S.I. to all of the plaintiffs. The terms of the written agreement provided that the trustee in bankruptcy would receive 75% of the settlement and that Beasley and Wilson would receive 25%. The settlement agreement was signed by Jim Parsons, Melba Parsons, Jim Parsons as president of Parsons Steel, Inc., A. Pope Gordon as trustee in bankruptcy of Parsons Steel Industries, Inc., Michael Orange as president of O.S.I., Inc., and Michael Orange individually. The settlement agreement was subsequently approved by the United States Bankruptcy Court, and the 25% fee (or $50,000) was paid to Beasley and Wilson in February 1983.[3] This settlement agreement discharged all defendants except First Alabama and Edward Herbert.
In February 1983, the Parsonses' fraud action, which had been pending in Montgomery County Circuit Court, was tried to a jury and a general verdict was returned in favor of the plaintiffs. Two million dollars was awarded to the trustee in bankruptcy, $1,000,000 each to Jim and Melba Parsons, and $1 to Parsons Steel, Inc. The lawsuit against Beasley and Wilson, which is the basis of this appeal, was filed by the Parsonses on March 18, 1985. The complaint and an amended complaint, which were filed in Montgomery County Circuit Court, alleged essentially three basic claims: breach of contract, fraud, and professional malpractice. The Parsonses subsequently initiated proceedings in the United States Bankruptcy Court to have the payment of fees, as provided in the pro tanto settlement agreement, rescinded.[4] This request was denied. The bankruptcy court also denied an application by the Parsonses to have the trustee in bankruptcy for Parsons Steel Industries, Inc., and the trustee's attorney removed and a new trustee and attorney appointed in their stead.[5]
An answer and an amended answer to the complaint were filed by Beasley and Wilson. It was therein maintained that the fraud count was barred by the statute of limitations and that Jim and Melba Parsons had no standing to assert the claims set forth in their amended complaint. Beasley and Wilson, moreover, asserted pleas of res judicata and collateral estoppel on the theory that the fees paid to Beasley and Wilson pursuant to the pro tanto settlement were so paid under lawful orders of the United States Bankruptcy Court.
Beasley and Wilson thereupon filed a motion for summary judgment on all counts, which was submitted on the pleadings, certain depositions, and certain affidavits accompanied by exhibits. The Parsonses then cross-filed for summary judgment on the breach of contract count, their motion being supported by affidavits of Jim and Melba Parsons. The affidavit of a local attorney, which purported to support the Parsonses' claims of legal malpractice, was also filed.
By an order dated September 23, 1986, the trial court, as previously indicated, denied the Parsonses' motion for summary *256 judgment and granted Beasley and Wilson's motion for summary judgment as to the fraud count. The summary judgment motion of Beasley and Wilson was denied as to the remaining counts of the complaint. Following certification of the summary judgment as a final judgment pursuant to Rule 54(b), A.R.Civ.P., this appeal and this cross-appeal were brought.
Fraud Claims
The Parsonses claim that Beasley and Wilson fraudulently induced them into signing the pro tanto release and settlement agreement and thereby fraudulently received the $50,000 payment provided for thereunder. Without addressing the merits of this argument, we conclude that any claims by the Parsonses for fraud are barred by the statute of limitations. The summary judgment entered by the trial court in favor of Beasley and Wilson on the claims for fraud is therefore due to be affirmed.
The general statute of limitations for an action based on fraud or deceit, Ala.Code 1975, § 6-2-38, provides that any such action must be commenced within two years from the date of the fraud.[6] At Ala.Code 1975, § 6-2-3, however, is a provision sometimes referred to as the "saving clause":
"In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have two years within which to prosecute his action."
Under this provision the general statute of limitations is thereby tolled and the time period for bringing an action extended when there has been a fraudulent concealment by the party guilty of fraud. Ryan v. Charles Townsend Ford, Inc., 409 So. 2d 784 (Ala.1981). The burden is thus on the party bringing an action for fraud to show that he comes within the purview of this provision, if it otherwise appears that the statutory period has expired. Lampliter Dinner Theatre, Inc. v. Liberty Mut. Ins. Co., 792 F.2d 1036 (11th Cir.1986). Basic to our application of this statute to the facts of the instant case are the holdings of this Court that:
"Under that section, the claim for fraud is considered as having accrued at the time of `the discovery by the aggrieved party of the fact constituting the fraud.' Following that discovery, that party has one year [now two years] within which to file his action. This Court has held that fraud is `discovered' when it ought to or should have been discovered. Moulder v. Chambers, 390 So. 2d 1044 (Ala.1980); Jefferson Co. Truck Growers Ass'n v. Tanner, 341 So. 2d 485 (Ala.1977). Thus, the time of `discovery' is the time at which the party actually discovered the fraud, or had facts which, upon closer examination, would have led to the discovery of the fraud. Papastefan v. B & L Construction Co., Inc. of Mobile, 385 So. 2d 966 (Ala.1980)."
Kelly v. Smith, 454 So. 2d 1315, 1317 (Ala. 1984). Accord, Miller v. SCI Systems, Inc., 479 So. 2d 718 (Ala.1985); Bank of Red Bay v. King, 482 So. 2d 274 (Ala.1985).
In the instant case, the undisputed facts show that both Jim and Melba Parsons signed the pro tanto settlement agreement on January 28, 1983. The Parsonses, however, contend that the terms of the written agreement were concealed from them. They support this contention with the allegation that they did not read the documents prior to signing them because they were being pressured by Frank Wilson to hurriedly sign the documents, under the guise of meeting some sort of filing deadline. We would point out, however, that the statute of limitations for fraud is not tolled by the failure of a person to read documents, including documents to which the person has affixed his or her signature. Cooper Chevrolet, Inc. v. Parker, 494 So. 2d 386 (Ala.1985); Harrell v. Reynolds *257 Metals Co., 495 So. 2d 1381 (Ala.1986). The record in this case clearly shows that some days later, during the trial of the fraud action against First Alabama and Edward Herbert in Montgomery County Circuit Court, there was extensive testimony elicited from witnesses in open court concerning the terms of the pro tanto settlement agreement, particularly in regard to the provision pertaining to the payment of attorney fees to Beasley and Wilson. The settlement agreement itself was introduced at trial as an exhibit.
In the instant case the trial court, in its written order on motion for summary judgment, noted the following:
"Both Jim Parsons and Melba Parsons were present at all times during such trial and carefully listened to the testimony of all witnesses and the arguments of counsel. The transcript of such trial reveals numerous instances in which the terms of the Pro Tanto Settlement Agreement, including the attorneys' fees paid to Beasley & Wilson, were discussed and described in detail. Numerous questions and answers were directed to such matters in the presence of Jim Parsons and Melba Parsons while they were seated no more than five or six feet from the witness stand. Although they signed the settlement agreement and were present when such testimony about the settlement was given in open Court in January and early February, 1983, the Parsonses never made any objection to such fees until shortly before they filed this lawsuit against Beasley & Wilson on March 18, 1985."
We have thoroughly reviewed the record and conclude that the summary judgment on the fraud claim was proper.[7]
The settlement agreement was signed by Jim and Melba Parsons on January 28, 1983. The fraud action against First Alabama and Edward Herbert was tried in Montgomery County Circuit Court on February 1 and 2, 1983. The Parsonses contend that they did not "carefully listen" to the testimony at the fraud trial and that therefore they were not on notice of the alleged fraud in the pro tanto release and settlement agreement. However, it is clear that at the time of the trial, as they sat in the courtroom, at that time the Parsonses either knew or should have known of the provisions of the pro tanto settlement agreement that they now claim constitutes a fraud. The fraud claims in this case were not filed until March 18, 1985. At this point, a period of two years and 44 days had elapsed from the time the Parsonses heard testimony in open court concerning the fee provision and a period of two years and 48 days had elapsed from the time the Parsonses signed the documents containing the provision. The plaintiffs in this case have not met their burden of showing a fraudulent concealment so as to toll the general statute of limitations and thereby extend the time for bringing their action. Accordingly, any claims for alleged fraud relating to the payment of fees to Beasley and Wilson under the terms of the pro tanto settlement agreement are barred by the statute of limitations.
Breach of Contract Claim
Any consideration of this claim is pretermitted by the rule that an order denying a motion for summary judgment is not appealable. Blanton v. Liberty National Life Insurance Co., 434 So. 2d 773 (Ala.1983). Accord, Whitehead v. Clix Photo Centers, Inc., 355 So. 2d 327 (Ala. 1978). In Whitehead v. Baranco Color Labs, Inc., 353 So. 2d 793 (Ala.1977), it was held that:
"`The order which denied summary judgment is interlocutory in nature, not made appealable by statute, and will, therefore, not support an appeal. See Dick v. First National Bank of Birmingham, 334 So. 2d 922 (Ala. [Civ.] App. *258 1976). Moreover, this appeal is not one by permission pursuant to Rule 5, ARAP.'"
353 So.2d at 794. Such an order is inherently non-final and cannot be made final by a Rule 54(b) certification.
Malpractice Claim
The arguments advanced by the parties as to the claim for malpractice will likewise not be discussed. An order denying summary judgment is interlocutory and nonappealable. Whitehead v. Clix Photo Centers, supra.
Conclusion
Based on the foregoing, the summary judgment in favor of the defendants as to the claims for fraud is due to be, and it hereby is, affirmed. These two appeals are dismissed as to their other aspects.
86-787, SUMMARY JUDGMENT AS TO FRAUD COUNT AFFIRMED; OTHERWISE DISMISSED.
86-851, DISMISSED.
TORBERT, C.J., and JONES, SHORES, ADAMS and STEAGALL, JJ., concur.
NOTES
[1] Frank M. Wilson was employed as an associate attorney by Jere L. Beasley from August 1979 to December 31, 1980. On or about January 1, 1981, he became a member of the firm of Beasley and Wilson.
[2] This settlement agreement forms part of the basis of the lawsuit by the Parsonses against Beasley and Wilson, which is the subject of this appeal.
[3] Because the trustee (A. Pope Gordon) of the "debtor in bankruptcy" (Parsons Steel Industries, Inc.) was a party plaintiff in the action giving rise to the pro tanto settlement agreement, any settlement payments received thereunder by the trustee would constitute "property" of the "estate" of the debtor. Approval by the bankruptcy court, as to participation in the settlement agreement by the trustee, was therefore required. See 11 U.S.C.S. § 541(a)(7) (part of the Bankruptcy Code).
[4] See 11 U.S.C.S. § 329 (Bankruptcy Code), "Debtor's transactions with attorneys."
[5] The Parsonses sought to have the attorney representing them in the matter at bar, Donald R. Harrison, appointed following refusal of the trustee to join in the recovery proceedings.
[6] We note, however, that at the time this cause of action is alleged to have arisen, the statutory limitations period was one year. Ala.Code 1975, § 6-2-39 (now repealed). At that time, the "saving clause," likewise, contained a one-year period.
[7] As indicated, the United States Bankruptcy Court entertained various applications and motions submitted by the Parsonses to recover the attorney fee paid pursuant to the pro tanto settlement agreement. Following one of the hearings conducted on the matter, the bankruptcy judge found: "The conclusion is inescapable from this evidence that Mr. Parsons had to know of the settlement and knew of all its essential terms." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624578/ | 769 S.W.2d 56 (1988)
Sylvia Elizabeth DAVENPORT, By and Through her husband and next friend, Harold DAVENPORT, and Harold Davenport, Individually, Appellants,
v.
EPHRAIM McDOWELL MEMORIAL HOSPITAL, INC.; Bill E. Barnett; Bill E. Barnett, P.S.C.; and Danville Anesthesia Associates, a Partnership, Appellees.
No. 87-CA-861-MR.
Court of Appeals of Kentucky.
December 22, 1988.
Discretionary Review Denied by Supreme Court May 31, 1989.
*58 Joe C. Savage, Savage, Garmer & Elliott, P.S.C., Lexington, for appellants.
George C. Piper, Dean T. Wellman, Martin, Ockerman & Brabant, Lexington, for appellee, Ephraim McDowell Memorial Hosp., Inc.
P. Joseph Clarke, Clarke & Clarke, Danville, for appellees, Bill E. Barnett, Bill E. Barnett, P.S.C., and Danville Anesthesia Associates, a Partnership.
Before HOWERTON, C.J., and COMBS and McDONALD, JJ.
COMBS, Judge.
This appeal is from the Boyle Circuit Court where a jury returned a verdict in favor of appellees, Ephraim McDowell Memorial Hospital (Hospital), Dr. Bill Barnett, Bill Barnett P.S.C., and Danville Anesthesia Associates, as against appellants Sylvia and Harold Davenport, husband and wife. The trial court entered judgment accordingly. Appellants' complaint against appellees alleged that Sylvia suffered severe personal injury while a patient at the hospital which was a result of the appellees' medical negligence. We reverse the judgment of the trial court, and remand the action for a new trial.
Sylvia was admitted to the hospital for comparatively minor surgery. She had had a heart condition for several years which was described as mitral valve prolapse with atrial fibrillation, meaning her heart would quiver rather than beat strong and healthy. The surgery was for the purpose of exploring for cancer and closure of a colostomy. The anesthesiologist was appellee, Dr. Bill Barnett. The surgeon was Dr. Chris Jackson. One of the anesthetics administered was Sufenta. The surgery went without complications.
Sylvia was taken to the recovery room at 11:35 a.m. She was connected to a heart monitor which was equipped with an alarm to sound in case her heartbeat stopped. She was awake and cogently spoke with Dr. Barnett about the operation. Her vital signs were normal. Dr. Barnett and a nurse, Wilma Pence, noted that Sylvia's heart had converted to a normal sinus rhythm and was pumping properly. Dr. Barnett left the recovery room, and placed Sylvia in the charge of nurse Louise Sexton. Dr. Jackson came into the room, briefly spoke with Sylvia, and left.
Nurse Sexton again took Sylvia's vital signs at 11:45 a.m. She then walked to a nearby nurses' desk. Another nurse, Beverly Wolfe, noticed at 11:46 a.m. that Sylvia was not breathing and was turning blue. The heart monitor was showing a flat line, but had sounded no alarm because its alarm system had either not been activated or its volume had been adjusted low enough to be inaudible.
CPR was commenced and Drs. Barnett and Jackson returned to the recovery room and continued efforts to resuscitate Sylvia. Sometime later spontaneous cardiac activity returned. Sylvia remained comatose and was placed on a respirator. She is now permanently comatose.
Appellants' first argument for reversal of the judgment is that the trial court erred twice during the jury selection process. They complain first that it was error to allow the coappellees to jointly exercise six peremptory strikes when their *59 interests were not antagonistic; and second, that it was error not to sustain their motion to strike two members of the jury panel for cause.
CR 47.03(1), (2) states that:
In civil cases each opposing side shall have three peremptory challenges, but coparties having antagonistic interests shall have three peremptory challenges each.
If one or two additional jurors are called, the number of peremptory challenges for each side and antagonistic coparty shall be increased by one.
Additional jurors were called.
The record reveals that during discussion in chambers counsel for Dr. Barnett, Barnett, P.S.C., and Danville Anesthesia Associates, informed the court that the interests of the coappellees were not antagonistic.
Having heard this, counsel for the appellants then argued the court to allocate four peremptory strikes to the appellants and four collectively for the coappellees, to be exercised in collaboration. The trial court decided to allow appellants four peremptory strikes and the coappellees collectively six peremptory strikes. This was reversible error.
The interests of the coappellees were indeed not antagonistic. Appellees argue that despite the representations of their trial counsel, whether or not interests are antagonistic is a question of law, and not a matter to be stipulated by counsel. We consider the interests of the coappellees not antagonistic as a matter of law.
The case of Roberts v. Taylor, Ky., 339 S.W.2d 653 (1960), is relied upon by the appellees for the proposition that where the defendants in a personal injury action are charged with independent acts of negligence, their interests are almost always antagonistic because each may escape liability or reduce liability by convincing the jury that the other was solely or primarily responsible. That is a somewhat mutated depiction of Roberts, supra.
The facts in Roberts were that a little girl was struck by an automobile while she was crossing a highway. A second driver, approaching the prostrate child from the opposite direction then ran over her. The two drivers were in no way related or acting in concert. Cross-claims for contribution and indemnity were filed. Roberts decided that cross-claims themselves are not necessary for the existence of antagonistic interests, but we mention for the sake of thoroughness that in this case none were filed. Surely, cross-claims or their absence, while not dispositive of the issue of the existence of antagonistic interests, is a fact to be weighed in the balance along with all others.
The Roberts court's actual words were that defendants charged with independent acts of negligence "in most any case of a collision of two or more vehicles involving a claim by a passenger" will mean that the defendants' interests are antagonistic. Roberts was a clear-cut, extreme case of antagonistic interests that is inapposite to our facts here. Here, not only were no cross-claims filed, appellees' shared the same theory of the case, i.e., that Sylvia's condition was not a result of renarcotization, but sprang from her previous heart condition that prompted a brain stem embolus. Granting the two non-antagonistic appellees six peremptory strikes was reversible error as a matter of law. Kentucky Farm Bureau Mutual Ins. Co. v. Cook, Ky., 590 S.W.2d 875 (1979).
We also agree with the appellants that it was reversible error for the trial court not to strike two jurors from the jury panel for cause shown after those jurors' own statements called their impartiality seriously into question.
One juror was asked the following question by appellants' counsel and gave the following answer:
COUNSEL: I know that it's a hard question, but do you feel in all fairness with your husband nurse who worked at the hospital and with you an employee, a former employee of this hospital, would you, knowing the doctor that is involved and with you knowing the nurses that are involved as you do that it would be better for you to excuse yourself?
JUROR: Probably.
*60 That juror's impartiality was also attacked by two of Sylvia's daughters who claimed to have overheard remarks made by the juror outside the courtroom prior to jury selection. The daughters told the court that they had heard the juror tell someone that she loved the hospital and Dr. Barnett, and that he had helped with the delivery of her child. She was also said to have been heard to profess her strong desire to serve as a juror on the case. The juror denied having made these statements, save the one about Dr. Barnett acting as anesthesiologist during the birth of her child.
The other juror was at the time of trial married to a doctor who was on the hospital staff, and she herself was a member of the hospital auxiliary. She was socially acquainted with Dr. Barnett and other doctors and employees connected to the hospital. She contended that these relationships would not affect her ability to weigh that evidence fairly, and the court refused to strike her for cause shown.
The Kentucky Supreme Court in Ward v. Commonwealth, Ky., 695 S.W.2d 404 (1985), adopted the language of Commonwealth v. Stamm, 286 Pa.Super. 409, 429 A.2d 4 (1981), when it held that:
[I]rrespective of the answers given on voir dire, the court should presume the likelihood of prejudice on the part of the prospective juror because the potential juror has such a close relationship, be it familial, financial or situational, with any of the parties, counsel, victims or witnesses.
Id. at 407, 429 A.2d 4.
We believe this precedent roundly resolves the issue of the jurors' disqualification in favor of the appellants. The Ward holding renders immaterial the trial court's subsequent attempt to rehabilitate the first juror's impartiality by questioning her a second time.
As we mentioned in our outline of the facts, at the time Sylvia suffered the cardiopulmonary arrest the alarm on the heart monitor attached to her was either disconnected or inaudible. Appellants introduced evidence that this was a deviation from accepted nursing care standards. The appellees countered with testimony from other nurses at the hospital, as well as from Dr. Barnett, that the reason the heart monitor alarms were not utilized at the hospital was because they are unreliable and unnecessary. They testified that the alarms sounded for inappropriate monitor readings, and that the nurses watch the recovery room patients so constantly that the alarm systems are superfluous.
The appellants had planned to introduce evidence that would have shown that the hospital changed its policy regarding the alarms and began consistent utilization of them immediately after Sylvia's arrest. The appellees moved in limine to preclude the introduction of any such evidence, and the trial court sustained the motion. We believe that was erroneous in this case.
Appellees argue the traditional and accepted rule that evidence of subsequent remedial changes or precautionary measures is to be precluded. See Lawson, Kentucky Evidence Law Handbook, 2d.Ed., Sec. 2.30(A). Appellants argue that the proffered evidence should have been admitted under the exception to the general rule that allows such evidence for impeachment purposes. Lawson, Id. at 2.30(B). We agree with the appellants that the evidence was proper for admission in order to impeach the testimony of the witnesses hostile to the appellants.
Nurse Wolfe testified on direct examination by appellees' counsel that the alarms "go off so often unnecessarily." Nurse Pence testified on cross-examination by appellants' counsel that the alarms "went off for false readings," and that they "are distracting really, as far as taking care of patients." Appellee Barnett testified on cross-examination by appellants' counsel that "you have alarms on there that will be going off all the time, and you will spend all your time pushing the reset button."
This adequately demonstrates that the appellees were attempting to convince the jury that the alarms were not operative at the time of Sylvia's arrest out of consideration for the patients' best interest. We *61 therefore believe that appellees' motion in limine was improperly sustained, and that the appellants should have been allowed to put before the jury their impeachment evidence of subsequent use of the alarms. We add, of course, that an appropriate admonition from the court to the jurors that they not infer negligence from that evidence alone would have unquestionably been warranted.
Appellants also complain that the court erred during trial when it refused to permit counsel to read excerpts from the deposition of one of appellees' defense experts in order to show during cross-examination of another defense expert that the two experts disagreed about a critical issue.
Dr. Kenneth B. Graulich, expert witness for the appellees, was deposed prior to trial. Dr. John Sartini, another of appellees' experts, testified at trial. While cross-examining Dr. Sartini, appellants' counsel was leading up to a reading from Dr. Graulich's deposition to show inconsistency between the two expert opinions. A conference at the bench was requested before counsel had the chance. Appellees' counsel then informed the court that they no longer intended to examine Dr. Graulich at trial, and they objected to appellants' counsel reading from his deposition. The court, on its own initiative, informed appellants' counsel that if he read Dr. Graulich's deposition he must read it in its entirety. The practical effect of this ruling was a forced abandonment of this line of questioning since Dr. Graulich's deposition was one hundred pages long. We believe that the ruling was erroneous under CR 32.01.
CR 32.01 permits the reading of a portion of a deposition, and subpart (d) of the rule allows the opposing party the opportunity to require any other parts to be introduced for the sake of fairness. The right to require such additional portions to be introduced belongs to opposing counsel, and it is their responsibility to avail themselves to the right. Absent a call upon the court to observe CR 32.01(d), the party who makes the initial offering of a portion of a deposition should not be hindered by a sua sponte ruling to put so much as one more word into evidence. See also Sullivan v. Bowling, Ky., 481 S.W.2d 83 (1972), (pertinent portions of two depositions of employees of plaintiff's former employer were erroneously excluded at trial).
Appellants next complain that the trial court erred when it admitted three exhibits.
First, during cross-examination of appellants' expert, appellees' attorney wrote on a piece of paper highlights of the testimony which accentuated appellees' theory of the case. These notes were authenticated by the witness as an accurate reflection of what he had said. The court admitted the notes as exhibits over appellants' objection. We agree with the appellant that this was error.
It is well established that such documents as maps, plans, and charts are proper candidates for exhibits to the jury. The form of the exhibit here in controversy is substantially different. A trial attorney's handwritten notes of selected portions of a witness' testimony are shrouded in a slanted subjectivity, regardless of the witness' authentication. Contrarily, maps and plans are free from this encumbrance. When given to a jury the latter educate; the former indoctrinate.
The harm of allowing counsel's notes to be taken into the jury room is worsened by the fact that when it is the court's imprimatur stamped upon the notes there is a high likelihood that a jury will be unduly impressed with an inordinate perception of their significance. Counsel should withhold summary of the evidence until closing argument. Closing arguments are not to be considered as evidence by the jury, and counsel's notes highlighting testimony should not be elevated to that status by embracing them as exhibits.
The next exhibit considered objectionable by the appellants was identified as "Guidelines for Standards of Care and Management Standards in the Post Anesthesia Care Unit," published by the American Society of Post Anesthesia Nurses. Appellants regard this document as a learned treatise, but we do not. It is more akin to the Public Safety Commission's standards considered by the court in Vaught's Adm'x v. Kentucky Utilities Co., Ky., 296 S.W.2d 459 (1956). The court *62 found them to be helpful as a guide for measuring care. We regard the nurses' publication in a similar fashion, and see no error in its being admitted as an exhibit.
The third and final exhibit attacked by the appellants was a summary of nurse Sexton's recovery room experience. We perceive no error in making this document an exhibit based upon Municipal Paving Co. v. Farmer, Ky., 255 S.W.2d 618 (1953), which held that:
[W]here a fact can be ascertained only by the inspection of numerous documents made up of many detailed statements, a summary of those documents is admissible if prepared and offered by a competent witness who has examined the documents and summarized the results. [Citations omitted.]
Id. at 620.
The hospital records from which the summary was made was made available to appellants prior to trial, and appellants had the opportunity on cross-examination to test the accuracy of the summary.
Next, appellees made a motion for leave of court to approach the physicians who had treated Sylvia. The court granted the motion. Appellants had intended to use these physicians as expert witnesses and as treating physicians.
Appellants say the order was improper under CR 26.02(4), which pertains to the scope of discovery of facts known and opinions held by expert witnesses. It allows this discovery by interrogatories. However, CR 26.02(4)(a)(ii) permits the court upon motion to allow "further discovery by other means." This language extends discretion to a trial court which encompasses the extent of the trial court's order permitting appellees' attorneys to approach the physicians and request an interview.
Appellants also objected to the motion on the ground that it violated the Interprofessional Code jointly adopted by the Kentucky Medical Association and the Kentucky Bar Association. The Code professes to be an ethical guide, not an authority binding the courts.
Appellants call attention to Section III B 4 of the Code and represent that section as prohibiting the physician from releasing "information" about a patient without the patient's prior, written authorization. The section does not use the word "information"; it uses the words "report or test." It does not discourage the court from granting leave to an attorney to merely approach the physician.
Appellants say Section V B 1 removes the traditional obligation of physician/patient confidence "only" in depositions. The section does remove the obligation in depositions, but does not state that then is the "only" time it is removed.
The order was not improper. It merely gave the court's permission to the appellees' attorneys to approach the treating physicians. No obligation was placed upon the physicians. They were free to react in any way dictated by their professional consciences, from fully discussing Sylvia's medical history and condition to abruptly slamming their office doors in the attorneys' faces.
Finally one argument remains. Appellants complain that the trial court erred in overruling their motion for an order compelling the personal attendance of a physician, and in quashing service of a subpoena on nurse Stewart. It was further error, appellants say, for the court to forbid pre-trial discovery of these witnesses, and to disallow their testimony at trial.
The record indicates to us that appellants' problem with this subject arose largely because of timing. Trial of the case was imminent before the court was properly given a chance to consider appellants' request. Since we are reversing the judgment of the trial court and remanding this case for a new trial, appellants should have opportunity anew to procure desired evidence from the physician and nurse.
The judgment of the Boyle Circuit Court is hereby reversed and this cause remanded for a new trial consistent with this opinion.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624612/ | 328 Mich. 398 (1950)
43 N.W.2d 904
MARDON
v.
FERRIS.
Docket No. 20, Calendar No. 44,767.
Supreme Court of Michigan.
Decided September 11, 1950.
Duane S. van Benschoten, for plaintiff.
Albert A. Smith (Alfred N. Slaggert, of counsel), for defendant.
DETHMERS, J.
Plaintiffs signed a written agreement to build a house for defendant's daughter and son-in-law, who signed as the other parties to the agreement, for $12,500. Plaintiffs claim that the written agreement was a sham, never intended by the parties to be of binding force; that it was preceded by an oral agreement between plaintiffs and defendant under which plaintiffs agreed to build the house and defendant agreed to pay for it on a cost-plus basis; that thereafter defendant persuaded plaintiffs to sign the written agreement with the understanding that it was not to be binding or to mean anything whatsoever or to serve any purpose other than that of enabling defendant to keep his brother from knowing how much the house was going to cost and for whom it was actually being built. Plaintiffs further claim that they built the house at a cost for labor and materials of $28,036.64 and that defendant has paid them on that account $17,500, leaving *400 a balance due of $10,536.64. Defendant denies that he made such oral agreement and asserts that the agreement for building the house was between plaintiffs and defendant's daughter and son-in-law only and that it was completely embodied and expressed in the written agreement, except that, at the time of its execution, he orally agreed to pay plaintiffs an additional $2,500, thus making the total price for which plaintiffs agreed to build the house $15,000. Defendant says that the additional $2,500 paid over and above the $15,000 price was a gratuity to plaintiffs to induce them to complete the house. From judgment for plaintiffs in the amount of $10,536.64 defendant appeals.
Defendant's chief contention is that parol evidence concerning the alleged oral agreement, varying the terms of the written agreement, was inadmissible. The function of the parol evidence, however, was not to vary the terms of the written agreement, but, rather, to show that it was entirely void because it never had represented a meeting of the minds between the parties nor been intended by them to be binding.
In Church v. Case, 110 Mich. 621, 624, this Court quoted with approval from Atwood v. Gillett & Desnoyers, 2 Doug (Mich) 206, 218, the following:
"Where parol evidence is offered to show that the written contract is void or not of binding force, it is admissible; but, if the object be to prove that it was intended to mean something different from what its language imports, it is inadmissible."
In Woodard v. Walker, 192 Mich. 188, 191, this Court said:
"The defendant relies upon the written contract, and insists that it should prevail instead of the alleged oral agreement. The complainant does not seek to vary the terms of the written contract, but *401 insists that it was never intended that the written agreement should have any force. That in substance it was executed to avoid jealousy on the part of defendant's own children, and thereby to avoid trouble to himself. Inasmuch as the contest is between the original parties to the written contract, this defense is permissible under the law. Church v. Case, 110 Mich. 621, and cases cited." (Italics supplied.)
See, also, Roosevelt Park Protestant Reformed Church v. London, 293 Mich. 547, 553, involving a claim that the written contract therein was but a sham to conceal the true situation created by an oral agreement and in which recognition is given to the rule in the Woodard and Church Cases.
Because of the italicized sentence in the above quotation from the Woodard Case, defendant contends that the rule in that case is not applicable to the instant case, in which the contest is not between the parties to the written agreement. We do not think that the indicated factual difference between the 2 cases warrants the nonapplication of the rule in that case here. The italicized sentence indicates no more than a recognition that were the vendor's interest in a written land contract to be assigned to an innocent purchaser for value it would be inequitable and an injustice to the latter, in a suit in equity by the vendee for specific performance of an oral agreement, to hold the written contract void because of the existence of the oral agreement to that effect between the original parties to the written land contract. No such injustice attaches here to holding defendant bound by his oral agreement.
Payments on the house to plaintiffs were made by defendant. Such payments exceeded by $5,000 the amount specified in the written contract and by $2,500 the amount for which defendant says plaintiffs agreed to build the house. There were no specifications nor any written agreement as to what *402 finish, trim, fixtures, et cetera, were to go into the house, these all being determined from time to time by defendant's daughter as the building progressed, but plaintiffs, nonetheless, willingly proceeded to install such items into the house as requested by defendant's daughter to the extent that their ultimate total investment exceeded $28,000. These facts, together with a reading of the entire record, combine to impress us that there is no merit to defendant's contention that the verdict upholding plaintiffs' claim of an agreement by defendant to pay for the house on a cost-plus basis was contrary to the great weight of the evidence.
Judgment affirmed, with costs to plaintiffs.
BOYLES, C.J., and REID, NORTH, BUTZEL, CARR, BUSHNELL, and SHARPE, JJ., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624627/ | 15 So. 3d 82 (2009)
In re Stephen J. HOLLIDAY.
No. 2009-B-0116.
Supreme Court of Louisiana.
June 26, 2009.
*83 Charles Bennett Plattsmier for Applicant.
Walton J. Barnes II, APLC, Walton Joseph Barnes, II; Christopher Lee Whittington; Stephen James Holliday, for Respondent.
ATTORNEY DISCIPLINARY PROCEEDINGS
*84 PER CURIAM.[*]
This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Stephen J. Holliday, an attorney licensed to practice law in Louisiana.
UNDERLYING FACTS
Count I
The underlying facts of this count are not disputed by respondent. On May 8, 2001, a police officer stopped respondent for speeding and driving erratically on Highland Road in Baton Rouge. Respondent acknowledged to the officer that he had consumed too much alcohol that night, but he declined to take a Breathalyzer test because he knew the results would be above the legal limit for intoxication. Respondent was arrested and charged with DWI and moving traffic violations; however, the DWI charge was ultimately dismissed. Respondent pled guilty to speeding and improper lane usage.
The ODC alleges that respondent's conduct violates Rules 8.4(a) (violation of the Rules of Professional Conduct) and 8.4(b) (commission of a criminal act, especially one that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer) of the Rules of Professional Conduct. Respondent subsequently stipulated that he violated the Rules of Professional Conduct as charged in this count.
Count II
On Saturday evening, September 8, 2001, respondent drove to the home of his estranged wife, Amy Holliday.[1] Respondent's two-year old daughter from his marriage to Ms. Holliday was with him in the car, and the formal charges allege that respondent was under the influence of alcohol at this time. Respondent did not find Ms. Holliday at home, but he discovered a pickup truck parked in the driveway which belonged to Ms. Holliday's boyfriend (now husband), Martin Schmidt. Using a shovel, respondent smashed all the windows of Mr. Schmidt's truck and caused significant damage to the body of the truck.[2] He then fled the scene prior to the arrival of the police.
The following day, September 9, 2001, the police were advised as to respondent's whereabouts near the intersection of Essen Lane and Perkins Road in Baton Rouge. As the police approached, they observed respondent proceeding in his vehicle down Perkins Road. The police followed respondent and activated their lights and sirens, but he refused to stop. The pursuit wound through a residential subdivision until respondent finally stopped in a private driveway, but he then refused to exit his vehicle as instructed. The police approached the vehicle with guns drawn and discovered respondent's daughter in a car seat in the front passenger seat.
After respondent was finally removed from his car by the police, he was arrested and charged with simple criminal damage to property and violation of a restraining order arising out of the incident involving Mr. Schmidt's truck. Respondent was also cited for failure to yield to an emergency *85 vehicle for refusing to stop when ordered to do so by the police.
The ODC alleges that respondent's conduct violates Rules 8.4(a) and 8.4(b) of the Rules of Professional Conduct.
Count III
At approximately 2:00 a.m. on December 3, 2002, respondent was driving south on LSU Avenue in Baton Rouge at a high rate of speed. At the intersection of LSU Avenue and Highland Road, respondent ran a red light and broadsided a vehicle traveling eastbound on Highland Road, injuring the driver.[3] Respondent, who was highly intoxicated at the time, exited his vehicle and attempted to flee the scene of the accident by climbing a wooded ridge south of the intersection. After the police searched the wooded area and apprehended respondent, he reported that he had been with a stripper from the Gold Club in Baton Rouge and that she had been driving his vehicle at the time of the crash. This story was a fabrication, however, as independent eyewitnesses confirmed that respondent had been driving the car and that no one else was with him. Respondent was arrested and charged with DWI second offense, hit and run, disobeying a red light, reckless driving, and failing to maintain proof of insurance. After obtaining numerous continuances of the matter, respondent pled guilty in February 2005 to failing to report an accident, disobeying a red light, and reckless driving. In June 2005, petitioner obtained a court order expunging the record of his arrest.
The ODC alleges that respondent's conduct violates Rules 8.4(a), 8.4(b), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct. Respondent subsequently stipulated that he violated the Rules of Professional Conduct as charged in this count.
Count IV
In June 2005, respondent gave a sworn statement to the ODC regarding the matters set forth in Counts I through III, supra. In response to the ODC's questions, respondent asserted his Fifth Amendment privilege against self-incrimination. The ODC insisted that respondent answer, on the ground that at the time of the statement, all criminal charges arising out of the underlying criminal matters had either been declined or resolved via plea. Nevertheless, upon the advice of counsel, respondent maintained his privilege under the Fifth Amendment as well as a "right to privacy" under the Louisiana Constitution.
The ODC alleges that respondent's conduct violates Rules 8.1(b) (failure to respond to a lawful demand for information from a disciplinary authority) and 8.1(c) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct.
DISCIPLINARY PROCEEDINGS
In January 2006, the ODC filed four counts of formal charges against respondent, as set forth above. Respondent, through counsel, answered the formal charges and initially denied any misconduct which warranted discipline. However, *86 in May 2006, respondent gave a sworn statement to the ODC in which he acknowledged under oath some of the facts and the rule violations alleged in the formal charges.
Formal Hearing
This matter proceeded to a formal hearing on the merits. At the hearing, respondent essentially agreed that he would not take issue with most of the factual allegations of the formal charges, with the following notable exceptions: (1) in Count II, respondent denied that he vandalized Mr. Schmidt's pickup truck, and moreover, he contended that he could not have done so because he was at his father's camp in St. Francisville on the evening of the incident in question; (2) in Count III, respondent denied any recollection of telling the police that a stripper from the Gold Club was driving his car when the accident occurred; and (3) in Count IV, respondent denied that by pleading the Fifth Amendment in his sworn statement he thereby failed to cooperate with the ODC.
In support of the allegations of Count III, the ODC introduced the depositions of Corporal Kevin Heinz of the Baton Rouge City Police Department, Leslie Marchan, John Rogers, and Ning Xie. Corporal Heinz, who investigated the accident caused by respondent, testified that he found no evidence to support respondent's claim that a stripper from the Gold Club had been driving his car when the accident occurred. Ms. Marchan and Mr. Rogers were driving on Highland Road that night and witnessed the accident. They both confirmed that respondent ran the red light at the intersection of Highland Road and LSU Avenue at a high rate of speed, and that no one else was in the car with respondent. Mr. Xie, the passenger in the car hit by respondent, likewise testified that he did not see anyone else in respondent's car.
With respect to the September 8, 2001 incident subject of Count II, respondent alternately testified that he did not smash Mr. Schmidt's pickup truck or that he does not remember doing it.[4] Respondent also claimed that he was not in Baton Rouge on that night, having spent the weekend with his father and stepmother at their camp in St. Francisville. Respondent testified that he went to St. Francisville with his daughter on Saturday morning, September 8th, and that he has no recollection of leaving the camp until Sunday. In support of this claim, respondent offered the testimony of his stepmother, Bonnie Holliday. She testified that respondent arrived in St. Francisville with his daughter on Saturday at 10:30 a.m. and stayed there until Sunday afternoon, when they all went back to Baton Rouge. Mrs. Holliday testified that no one left the camp during this time except to attend Mass on Sunday morning.
The ODC presented the testimony of several witnesses in support of the allegation that respondent was the individual who vandalized Mr. Schmidt's truck. According to the witnesses, Mr. Schmidt and Ms. Holliday had gone out to dinner on the evening of September 8th. Ms. Holliday drove her car, leaving Mr. Schmidt's truck parked in the driveway of her home. During the evening, respondent knocked on the door of Ms. Holliday's home while holding his two-year old daughter in his arms. Christy Caballero, who was babysitting Mr. Schmidt's two children and Ms. Holliday's two children from a prior marriage, came to the door and told respondent that she could not let him in. *87 Respondent became angry and started banging on the door. Ms. Caballero told him that Ms. Holliday had a restraining order against him and that she was going to call the police. Respondent continued banging on the door, and so Ms. Caballero brought all the children into a back bedroom and called the police. She also called Ms. Holliday to advise her of the situation.
Meanwhile, Ashley Mullens, who resided in a garage apartment at the rear of Ms. Holliday's property, heard loud banging and yelling coming from Ms. Holliday's front yard. Ms. Mullens looked out of her window, which overlooked Ms. Holliday's driveway, and saw a man hitting the pickup truck parked in the driveway while holding a small child in his arms. Because it was dark, Ms. Mullens was not able to see the man's face, but she was clear that the man was holding a child as he vandalized the truck.
When Mr. Schmidt and Ms. Holliday arrived home, Mr. Schmidt noticed that his truck looked like it "had ice all over it." Mr. Schmidt then discovered that every window and mirror in the truck had been "smashed to pieces." Ms. Holliday called the police, and Corporal Kenneth Bowman of the Baton Rouge City Police Department arrived at midnight to investigate the matter.[5] He observed that the damage to the truck had apparently been caused by a shovel that had been left next to the truck. After taking statements from Ms. Caballero and Ms. Mullens, and photographing the damage to the truck, Corporal Bowman went to respondent's residence, but he was not there.
Respondent was ultimately arrested on Sunday after a police pursuit. During booking, respondent told Corporal Bowman that he had gone to Ms. Holliday's residence on Saturday evening to pick up their daughter because Ms. Holliday was going out with one of her girlfriends. Later, respondent found out that Ms. Holliday was actually going out with another man. Respondent told Corporal Bowman that he became concerned about Ms. Holliday's other children when he called her house and did not get an answer, so he went over there to check on the children. Respondent stated that when he got to the house he was greeted at the door by a female he did not know but who he assumed was the babysitter. The babysitter told respondent that he had to leave or that she was going to call the police. Respondent told Corporal Bowman that he then left the residence and went to St. Francisville, where his father has a camp. Respondent also told Corporal Bowman that he knew about the restraining order against him but thought that it had expired, and that Ms. Holliday was just trying to make him "look bad in the divorce."
An issue arose at the formal hearing concerning whether respondent had made any admissions concerning this incident to a social worker, David Rougeau. Mr. Rougeau saw respondent for counseling from August 2001 to July 2002, and he was called as a witness by respondent to testify concerning the acrimony of his divorce from Ms. Holliday, among other issues. On cross-examination, Mr. Rougeau testified that during counseling, respondent had discussed with him the incident involving Mr. Schmidt's truck, and that respondent had admitted he had "taken a shovel" to the truck and "beat it up." Because this admission was not referenced in the records of respondent's treatment *88 which Mr. Rougeau had brought to the hearing, the parties agreed that Mr. Rougeau would return to his office and search for the additional records. The committee chair gave explicit instructions that any records Mr. Rougeau found were not to be "shared or discussed with any other witnesses to this proceeding prior to the Office of Disciplinary Counsel and the respondent's attorney [having] an opportunity to review those records."
When Mr. Rougeau returned to the hearing, he gave his records to respondent's counsel only. Mr. Rougeau was also seen conferring with respondent and his counsel outside the presence of the disciplinary counsel. Thereafter, Mr. Rougeau took the stand and testified that he "could not find any specific reference" in his notes to an admission by respondent to having vandalized Mr. Schmidt's truck. Furthermore, Mr. Rougeau testified that he was now "not sure" whether respondent had admitted to vandalizing the truck, or simply that he had been accused of doing so.
For his part, respondent did not know whether he had or had not spoken to Mr. Rougeau about the truck incident, but claimed that if he had talked to him about the incident, it was simply to report that he had been accused of vandalizing Mr. Schmidt's truck. Nevertheless, respondent continued to deny any memory of actually committing that act, stating, "I don't remember doing it. I don't think I did it."
Hearing Committee Report
After considering the evidence and testimony presented at the hearing, the hearing committee made the following factual findings:
Count I The committee found that on May 8, 2001, respondent was arrested and charged with the crime of driving while intoxicated, among other crimes. While respondent ultimately pled guilty to reckless operation, not DWI, the committee found the ODC presented evidence showing that respondent had, in fact, driven while intoxicated. For example, Captain Joseph Bourgeois of the Baton Rouge City Police Department testified that respondent's performance on the HGN (horizontal gaze nystagmus) test was consistent with intoxication, and that respondent smelled strongly of alcohol and spoke with slurred speech. Considering this evidence, the committee concluded the ODC proved to a clear and convincing standard that respondent engaged in illegal conduct by driving his vehicle while intoxicated and driving erratically and at a high rate of speed, all as alleged in Count I.
Count II The ODC alleges that respondent engaged in illegal conduct by smashing Mr. Schmidt's truck with a shovel, and by later fleeing from police when they tried to pull over his vehicle. As alleged, when respondent finally stopped his vehicle, police approached with guns drawn and discovered respondent's minor child in the front passenger seat. Respondent admits that he ignored a lawful order of the police to pull over his vehicle, and that he endangered his daughter, himself, and others in the process. However, respondent denies smashing the truck.
The committee found the ODC proved by clear and convincing evidence that respondent smashed Mr. Schmidt's truck with a shovel. The committee found respondent admitted to Mr. Rougeau during a counseling session that he had done so,[6]*89 but noted this was by no means the only evidence placing respondent at his estranged wife's house on the night of September 8, 2001. In rejecting respondent's alibi that he was in St. Francisville that evening, the committee relied upon respondent's admission (as reflected in the police report) that he had been at Ms. Holliday's house on the night of September 8th and then had later gone to St. Francisville. The committee also noted that respondent paid $9,000 to settle the claim for damages to the truck. Furthermore, the committee was persuaded by the testimony of Ms. Mullens, the garage apartment tenant, who saw the perpetrator using a shovel to smash the truck with one hand while holding a small child in the other hand. This person was identified through other evidence as respondent. Considering all of the documentary and testimonial evidence together, the committee found the ODC "amply carried its burden of proof on Count II."
Count III The ODC alleges that on December 3, 2002, respondent was again driving while intoxicated and operating his vehicle in a dangerous manner when he failed to observe a red light and crashed into another vehicle. The ODC also alleges that respondent fled the scene of the accident on foot, and that after he was apprehended, he falsely told police that a stripper had been driving his car at the time of the accident. Respondent admits all of the facts alleged in this count, with the exception of having fabricated the story about someone else driving his car.
The committee found the ODC proved by clear and convincing evidence that respondent drove while intoxicated, crashed his vehicle and injured the driver of the other vehicle involved, and fled the scene. Once he was apprehended, respondent told police a fabricated story about a stripper driving his car at the time of the crash. The ODC introduced the testimony of the arresting officers, one of the victims of the crash, and the other witnesses at the scene. Their testimony was consistent that no one else was in the car driven by respondent.
Count IV The committee found the ODC proved by clear and convincing evidence that respondent failed to cooperate during the taking of his sworn statement on June 9, 2005. Respondent thwarted the ODC's legitimate inquiries during the taking of the sworn statement, and there was no legal justification excusing his full cooperation with the ODC. For example, respondent invoked the Fifth Amendment when the ODC asked how many times he had been arrested in his life. On the date of the sworn statement, respondent had reached plea agreements on the two DWI charges of which the ODC was aware. Notwithstanding the pleas, respondent argues that he could claim a Fifth Amendment privilege even after the plea agreements. However, the committee found that respondent was not subject to incriminating himself by answering the question of how many times he had been arrested. Moreover, the committee found that it was not criminal jeopardy respondent was attempting to avoid, but rather jeopardy in the attorney disciplinary system. Finding respondent "would take any steps to avoid a full picture of his sanctionable misconduct from coming to light," the committee concluded that respondent's "approach to invoking constitutional privileges against self-incrimination is insupportable" and *90 that "nothing in Rule XIX or the Rules of Professional Conduct countenances gamesmanship when answering for one's own suitability and fitness to practice law." The committee further rejected respondent's claim that he could refuse to answer based upon a right of privacy. The committee noted that contrary to respondent's assertion that the formal charges were the result of a complaint filed against him by Ms. Holliday seeking to gain an advantage in the ongoing child custody dispute, the ODC initiated its investigation after respondent's DWI arrest was reported in the local newspaper.
Based on these factual findings, the committee determined that respondent violated the Rules of Professional Conduct as charged in the formal charges. The committee determined that respondent violated duties owed to the public and to the profession. Respondent's actions were, by their very nature, knowing and intentional. The consequences of respondent's actions were potentially serious, although in some instances, actual harm resulted, as when respondent injured a woman while driving under the influence of alcohol and when he caused more than $10,000 in damage to Mr. Schmidt's truck. The baseline sanction for respondent's misconduct is suspension.
The committee found the following aggravating factors apply: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law (admitted 1995). In mitigation, the committee recognized the following factors: absence of a prior disciplinary record and personal or emotional problems stemming from respondent's acrimonious divorce.
Regarding the issue of an appropriate sanction, the committee considered the similarity of Count III to the facts of In re: Marinoff, 01-2584 (La.6/7/02), 819 So. 2d 305. In Marinoff, the respondent drove himself and a friend home from a bar. Mr. Marinoff, who was intoxicated, lost control of the car and it flipped several times, ejecting the passenger from the car and badly injuring her. Mr. Marinoff received relatively minor injuries. When two passersby stopped at the accident scene, Mr. Marinoff falsely claimed that everyone else in the car was dead. After the passersby returned from calling 911, Mr. Marinoff changed his story and claimed that no one else had been in the car. He also asked several times to be taken away from the scene, indicating that he did not want any attention drawn to himself because he had "already been in trouble once before." Fortunately, the passersby ignored Mr. Marinoff and eventually discovered the badly injured passenger. When Mr. Marinoff was transported to the hospital, he changed his story yet again, falsely telling police that an individual named "Jason" had been driving the car at the time of the accident. This court found that after the accident, respondent engaged in conduct involving dishonesty, fraud, deceit, and misrepresentation in violation of Rule 8.4(c). For this misconduct, Mr. Marinoff was suspended from the practice of law for six months.
In contrast, the committee found respondent's misconduct was much more serious. Respondent engaged in not one but three instances of misconduct which reflect adversely on his fitness to practice law. Both the truck-bashing incident and respondent's second DWI resulted in actual, serious harm, and during the latter incident respondent made false statements in an effort to avoid criminal consequences. Respondent also has a fourth instance of *91 misconduct in failing to cooperate with the ODC.
In light of this misconduct, and noting that the aggravating circumstances far outweigh the mitigating circumstances, the committee recommended that respondent be suspended from the practice of law for two years.
Both respondent and the ODC objected to the hearing committee's report. Respondent took issue with the committee's findings and argued that the sanction in this case should not exceed that which was imposed in Marinoff. The ODC argued that respondent should be disbarred.
Disciplinary Board Recommendation
After review, the disciplinary board found that the hearing committee's factual findings are not manifestly erroneous, with one clarification. In Count II, the ODC alleged that respondent was under the influence of alcohol the night he vandalized Mr. Schmidt's truck. Although the committee found the ODC "amply carried its burden of proof on Count II," the committee did not specifically find that respondent was under the influence of alcohol that evening. Regardless, the board found there is no evidence in the record to suggest that respondent was under the influence of alcohol during the events described in Count II. Accordingly, the board clarified the committee's findings of fact on that point.
The board agreed with the committee that respondent violated the Rules of Professional Conduct as charged in the formal charges. The board determined that respondent violated duties owed to the public and the profession. Respondent's conduct was knowing and intentional. In Count I, respondent drove a vehicle at a high rate of speed while intoxicated, presenting a high risk of potentially serious harm to the public. In Count II, respondent placed his minor daughter in danger by smashing a truck with a shovel while he held her in his arms. Further, with his daughter in the car, respondent refused to stop for police officers, causing the officers to approach respondent's car with guns drawn after he eventually stopped. This is a second incident in which respondent put his daughter's well-being at risk. In Count III, respondent's reckless conduct caused actual harm to the passengers of the vehicle he struck. Ms. Tran, the driver of the vehicle, testified that she still experiences pain as a result of the accident.
In determining the applicable baseline sanction in this matter, the board looked to the ABA's Standards for Imposing Lawyer Sanctions and determined that the baseline sanction for respondent's criminal acts is suspension. The board noted that this case is not limited to criminal conduct, however. Rather, the board felt respondent's dishonesty and obstruction during the disciplinary proceeding are the central focus of the case, which warrant an upward deviation in the baseline sanction. The board observed that respondent has obstructed this proceeding by refusing to answer routine questions under the guise of a constitutional privilege. Further, he refused to admit liability for damaging Mr. Schmidt's truck, despite overwhelming evidence that places him at the scene. Given this overwhelming evidence, the board found that respondent's stepmother apparently offered false testimony at his prompting in an attempt to deflect responsibility for his actions. The board concluded this was "intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice," within the scope of Standard 5.11(b), and therefore the applicable baseline sanction is disbarment.
The board found the following aggravating factors apply: a pattern of misconduct, *92 multiple offenses, bad faith obstruction of the disciplinary proceeding, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law. In mitigation, the board recognized the following factors: absence of a prior disciplinary record and personal or emotional problems.
The board found very little prior jurisprudence similar to the unique facts of this case. Respondent's conduct in Count III is similar to Marinoff, in that he caused an accident while highly intoxicated, injuring two other people. He attempted to flee the scene of the accident on foot, but was apprehended by police. Upon questioning, respondent claimed not to be the driver of the car. Considering these facts, the board found respondent's actions and statements were an attempt to deceive the police.
However, respondent also engaged in other misconduct. The incident in Count III was respondent's second arrest for DWI. The first arrest is described in Count I. Further, in Count II, respondent endangered the well-being of his young daughter by engaging in reckless behavior. While respondent has admitted to most of the misconduct, he still vigorously denies liability for damaging Mr. Schmidt's truck, going to the extreme extent of offering what appears to be false testimony from his stepmother. The facts, as found by the committee and supported by the record, indicate otherwise.
Finally, and most significantly, respondent attempted to disrupt the ODC's investigation of this matter by unjustifiably invoking constitutional protections and offering false testimony. In In re: Harris, 03-0212 (La.5/9/03), 847 So. 2d 1185, the court permanently disbarred a lawyer who offered false testimony and fabricated evidence in a disciplinary matter.[7] While the board did not feel respondent's conduct rose to the level of that seen in Harris, respondent did engage in a calculated effort to obstruct the ODC's investigation of this case and offered what appears to be the false testimony of his stepmother.
Under all these circumstances, the board recommended that respondent be disbarred. One board member dissented and would recommend a lengthy suspension from the practice of law.
Respondent filed an objection to the disciplinary board's recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).
DISCUSSION
Bar disciplinary matters fall within the original jurisdiction of this court. La, Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So. 2d 343; Louisiana State Bar Ass'n v. Boutall, 597 So. 2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing *93 committee and disciplinary board, we have held the manifest error standard is applicable to the committee's factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So. 2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So. 2d 150.
Respondent has stipulated to the underlying facts regarding the criminal offenses which form the basis of Counts I and III.[8] Therefore, our focus is on the factual findings in the truck vandalism matter (Count II) and the failure to cooperate matter (Count IV).
The crux of the allegation in Count II is that respondent vandalized a truck belonging to his estranged wife's boyfriend while it was parked at his wife's home in Baton Rouge. The record reveals the ODC's case depended in large measure on the testimony of two witnesses, Christy Caballero and Ashley Mullens. Ms. Caballero testified she was babysitting at the home of respondent's estranged wife on the night of the incident. She testified respondent knocked on the door while holding his two-year old daughter and that he became angry when she would not let him in. Ms. Mullens, a resident of the garage apartment at the rear of the property, testified she saw a man hitting a pickup truck in the driveway. Although Ms. Mullens could not identify the man, she testified he was holding a child in his arms as he vandalized the truck.
In opposition to the evidence produced by the ODC, respondent testified that he was in St. Francisville on the night of the incident and did not return to Baton Rouge until the next day. As corroboration, he relied on the testimony of his stepmother, who indicated he was in St. Francisville during the relevant time period.
After hearing testimony from all the witnesses, the hearing committee made a factual finding that respondent was responsible for vandalizing the truck. In In re: Bolton, 02-0257 (La.6/21/02), 820 So. 2d 548, we explained that although this court is the trier of fact in bar disciplinary cases, we are not prepared to disregard the credibility evaluations made by those committee members who were present during respondent's testimony and who act as the eyes and ears of this court. Therefore, we find no manifest error in the hearing committee's factual finding that the ODC proved the allegations of Count II by clear and convincing evidence.
Nonetheless, we must reject the disciplinary board's finding that respondent presented false testimony and fabricated evidence in connection with Count II. As a threshold matter, we note the hearing committee made no such factual finding. Because the disciplinary board serves an appellate review function under Supreme Rule XIX, § 11(F), it should refrain from making findings based on a cold record. See, e.g., Canter v. Koehring Co., 283 So. 2d 716, 724 (La.1973) (holding that the trier of fact has a better capacity to evaluate live witnesses as compared with the appellate court's access only to a cold record).
Moreover, in the event respondent presented false statements during the disciplinary process, due process requires that such misconduct should be addressed *94 through separate formal charges. See In re: Harris, 00-1825 p. 12 (La.11/13/00), 774 So. 2d 963, 969 ("[u]nder the circumstances of this case, and in consideration of the interests of justice and due process, we believe this misconduct should be alleged by separate formal charges."). Accordingly, while we find the allegations of Count II have been proven by clear and convincing evidence, we decline to make any finding that respondent presented false or fabricated testimony in connection with this count.[9]
In Count IV, the ODC's allegation that respondent failed to cooperate is based on his refusal to answer questions during the course of his sworn statement on June 9, 2005. Although respondent invoked his Fifth Amendment privilege in response to questions concerning his prior arrests, the committee made a finding that the questions asked by the ODC would not have resulted in respondent's incriminating himself. As a result, the committee found respondent failed to cooperate with the ODC's investigation.
The Self-Incrimination Clause of the Fifth Amendment, as incorporated in the Fourteenth Amendment, extends to disciplinary proceedings. Spevack v. Klein, 385 U.S. 511, 87 S. Ct. 625, 17 L. Ed. 2d 574 (1967). However, there must be a reasonable basis for the assertion of the privilege. As the Court explained in Hoffman v. United States, 341 U.S. 479, 486, 71 S. Ct. 814, 95 L. Ed. 1118 (1951), "[t]he witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself his say so does not of itself establish the hazard of incrimination." Rather, the protection of the Fifth Amendment must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer. Id.
In the instant case, the record supports the hearing committee's factual finding that respondent's assertion of the Fifth Amendment privilege was not reasonable under these facts. It is undisputed that at the time of the sworn statement, respondent had reached plea agreements on his two DWI charges. Thus, we fail to see how the ODC's questions regarding how many times he had been arrested could have placed respondent in jeopardy. Likewise, respondent's vague assertion of a "privacy" interest did not justify his refusal to answer the ODC's questions. Under these circumstances, we find no manifest error in the hearing committee's factual finding that respondent failed to cooperate with the ODC.[10]
Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent's actions. In considering that issue, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis, 513 So. 2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana *95 State Bar Ass'n v. Whittington, 459 So. 2d 520 (La.1984).
As the board observed, there is not much prior case law directly on point with the facts of the instant misconduct. However, there is little doubt that respondent's conduct is serious in nature. Taken as a whole, the charges against respondent demonstrate he has acted with callous disregard for the law, causing both potential and actual harm.
Numerous aggravating factors are present, including a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victim, and substantial experience in the practice of law. The sole mitigating factors supported by the record are the absence of a prior disciplinary record and personal or emotional problems.
Considering all these circumstances, we conclude the appropriate sanction in this case is a three-year suspension from the practice of law.
DECREE
Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Stephen J. Holliday, Louisiana Bar Roll number 23496, be and he hereby is suspended from the practice of law for three years. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.
NOTES
[*] Retired Judge Robert Lobrano, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball, recused. Retired Judge Philip Ciaccio, assigned as Justice ad hoc, sitting for Justice Chet D. Traylor, now retired.
[1] Respondent and Ms. Holliday had separated in July 2001 after three years of marriage. They were ultimately divorced by judgment rendered in February 2002.
[2] In 2002, respondent reimbursed Mr. Schmidt's insurance carrier some $9,000 for the damage to the truck.
[3] The police report of the accident indicates that Elizabeth Tran suffered moderate injuries when respondent hit the car she was driving. Ms. Tran testified at the formal charge hearing that she had to quit her job as the manager of a retail store because she had back pain and could not stand for long periods of time. Ms. Tran had none of these problems prior to the accident, and even after medical treatment, she still is not fully healed and continues to suffer pain. Ms. Tran has settled the lawsuit she filed against respondent for the injuries she suffered in the accident.
[4] Respondent testified:
No, I don't. I don't have any recollection of that. I don't remember it. I don't think I did it In fact I didn't do it.
[5] The police report indicates that Corporal Bowman was dispatched in response to Ms. Holliday's call. It is unclear whether police ever went to Ms. Holliday's residence in response to the call placed by Ms. Caballero.
[6] In making this finding, the committee related the controversy surrounding Mr. Rougeau's testimony and the production of his treatment notes, and then stated:
Having viewed this witness, assessed his demeanor, and evaluated the circumstances surrounding his testimony, we find Mr. Rougeau's first version of events to be the most credible recitation of what occurred. That is, we find that Mr. Holliday admitted to Mr. Rougeau during a counseling session that Mr. Holliday had bashed the truck.
[7] In Harris, the lawyer claimed that he returned funds to his client in the form of several money orders, copies of which he introduced into evidence at the disciplinary hearing. However, the ODC discovered that these money orders did not match the ones ultimately received by the client, and that some of the client's money orders were not even purchased until after the disciplinary hearing. To explain this discrepancy, Mr. Harris offered a fabricated confession in which his late sister claimed to have stolen the original money orders from the client's file and to have then purchased replacement money orders. The ODC disproved the authenticity of this confession with the testimony of a handwriting expert and the testimony of the sister's husband and son.
[8] While respondent had challenged the ODC's assertion in Count III that he falsely told police that a stripper had been driving his car at the time of the accident, respondent appears to have abandoned that issue in his brief filed in this court. To the extent respondent continues to maintain his position, however, we find the evidence in the record is clear and convincing that respondent's post-accident conduct involved elements of dishonesty, deceit, and misrepresentation, in violation of Rule 8.4(c).
[9] Nothing in this opinion should be construed as expressing any view on whether the filing of additional formal charges is justified under the facts of this case.
[10] Because we ultimately find respondent could not validly claim a Fifth Amendment privilege, we need not pass on whether the ODC's rejection of his assertion of the privilege should have been subject to immediate review. However, we note some states have adopted such a procedure in disciplinary cases. See In re Zisook, 88 Ill. 2d 321, 58 Ill. Dec. 786, 430 N.E.2d 1037 (1981). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624625/ | 769 S.W.2d 394 (1989)
298 Ark. 256
Charlene Diane HUTTON, Mother, David Edward Hutton, Father, Appellants,
v.
Michael SAVAGE, as Representative of the Arkansas Department of Human Services, Division of Children and Family Services, Appellees.
No. 88-274.
Supreme Court of Arkansas.
March 20, 1989.
Jim Johnson, Rogers, for appellants.
Dianne C. Boyd, Fayetteville, for appellees.
HOLT, Chief Justice.
This appeal is from an order of the probate court finding that the two minor children of appellants Charlene and David Hutton ("Huttons") continue to be dependent-neglected, that it is in the best interest of the children to have custody continue in the appellee Arkansas Department of Human Services ("Human Services") for foster care placement, and that Human Services should petition for guardianship with authority to consent to adoption. The Huttons argue: (1) the juvenile master's findings and conclusions, as adopted by the probate judge, are against a preponderance of the evidence; (2) the order of the probate court is void because the juvenile master acted in excess of the powers granted him by our code; and (3) the exercise of jurisdiction over dependent-neglected juveniles is not a permissible function of the *395 probate courts under the Arkansas Constitution.
We agree with the Huttons' second point that the participation of the juvenile master appointed to preside over this case exceeded that authorized by law. This raises the far more fundamental issue of the power of the probate court to vest in the master the right to preside over all juvenile cases in probate court. We conclude that the legislation which permits the use of masters and referees in juvenile cases, Act 14 of 1987, § 6, Ark.Code Ann. § 9-27-310 (Supp.1987), contravenes the delegation of judicial powers and duties as set forth in our constitution and constitutes an unauthorized grant of legislative authority. We reverse and remand for proceedings consistent with this opinion and address only such other issues as may arise on remand.
In December 1984 a petition was filed in the Benton County Juvenile Court on behalf of Arkansas Social Services requesting court ordered supervision of the home environment of the Huttons' children, Christina and Lisa. The petition alleged that, in order to protect the health and well being of the children, the Huttons should be required to attend parenting classes and should make their home safe and clean.
Subsequently, on January 22, 1985, Christina and Lisa were adjudicated dependent-neglected. It was determined that reasonable efforts had been made by social service agencies as of 1982 to provide supportive care and preventive services in order to keep the children in the home of their parents but that it was necessary to place the children in protective foster care in order to secure their health and welfare.
From February 1985 until May 1988, at least thirteen orders were entered reflecting hearings on the issue of the Huttons' care of Christina and Lisa. Prior to January 1987 it was determined at each hearing that custody of the children should remain with the Department of Human Services and that Human Services should continue to provide rehabilitative services and attempt to return custody to the Huttons.
On January 20, 1987, this court held that the exercise of exclusive jurisdiction over juveniles was not a permissible function of the county courts under the Arkansas Constitution. Walker v. Arkansas Dep't. of Human Services, 291 Ark. 43, 722 S.W.2d 558 (1987). The legislature immediately responded by transferring jurisdiction of all matters pertaining to juveniles in need of supervision and dependent-neglected juveniles to the probate courts. Act 14 of 1987. As a result, the case at bar was transferred to the Benton County Probate Court.
On February 27, 1987, the Benton County Probate Court entered an order appointing a master to hear all juvenile cases in the probate court as provided in § 6 of Act 14. Between January and November 1987, at least four hearings were conducted by the master concerning the care of Christina and Lisa. During that period custody was returned to the Huttons in light of improvements in the home situation.
On April 15, 1988, a motion was filed by Human Services which requested that custody of the children be returned to them because the Huttons had failed to comply with the terms and conditions of the court's orders and a change of custody was necessary to protect the health and welfare of the children due to a rapidly deteriorating home situation. Custody was temporarily returned to Human Services on April 19, 1988.
On May 24, 1988, the juvenile master of the probate court conducted a hearing. An order was entered on July 29, 1988, signed by the master and by the probate judge finding that custody should continue with Human Services for foster care placement and that Human Services should proceed with a petition for guardianship with authority to consent to adoption. From that order comes this appeal.
Use of the Juvenile Master
The Huttons argue that the order appealed from is void and of no effect as it was in form and substance a final order by the juvenile master, which is contrary to the directive in § 6 of Act 14 of 1987 [Ark.Code Ann. § 9-27-310 (Supp.1987)] that all masters and referees appointed to hear juvenile *396 cases shall only submit recommendations to the probate judge and shall in no event have the authority to issue a final order with respect to any matter referred to them. We agree that the master exceeded the powers which probate courts may vest in juvenile masters. Likewise, we note that his participation went beyond that contemplated by ARCP Rule 53 and our decisions in State v. Nelson, 246 Ark. 210, 438 S.W.2d 33 (1969), and Gipson v. Brown, 295 Ark. 371, 749 S.W.2d 297 (1988).
It is also clear to us that § 6 of Act 14 of 1987, which grants judges the right to appoint juvenile masters with such powers as the judges direct and which purports to vest in the masters the full authority of the judges of their respective divisions, constitutes an unauthorized grant of legislative authority and the impermissible creation of what amounts to substitute judges.
Because the grants of power found in § 6 of Act 14 go to the very essence of the exercise of jurisdiction over juvenile matters, we address the permissible use of masters and the provisions of Act 14 even though the parties did not present these issues at the trial level. It is well settled that on appeal this court may raise the issue of lack of jurisdiction notwithstanding that the parties did not question jurisdiction below. Miles v. Southern, 297 Ark. 274, 760 S.W.2d 868 (1988).
Act 14 of 1987, § 6, provides in part as follows:
The judge or judges of the juvenile division of the circuit court and the juvenile division of the probate court of each county may, by joint agreement, designate and appoint a referee or master ... who shall have such power as may be granted by the judges of said divisions to hear juvenile cases within the jurisdiction of their respective courts, and submit recommendations to the judges....
A referee (or master) so designated shall have all the authority and powers of the judges of their respective divisions, but all orders arising from cases referred to the referee (or master) shall be issued by the judges of their respective divisions, and in no event shall the referee (or master) have the authority to issue a final order with respect to any matter referred to them. Provided, however, that the respective judges of the juvenile division of the ... probate court may authorize the referee (or master) to enter temporary orders in emergencies or under special circumstance, as authorized by such judge, which shall become final only on the approval and signature of the judge of the court from which such order is issued. [Emphasis ours.]
It was pursuant to § 6 of Act 14 that the Benton County Probate Court issued its order of February 27, 1987, appointing the juvenile master who presided over the Huttons' case. The order provided in part as follows:
The Master shall have power to hear juvenile cases and make recommendations to the judges of their respective courts, pursuant to Act 14 of 1987. He shall have authority to enter temporary orders in emergencies ... but such orders shall become final only on the approval and signature of the judge of the court from which such order is issued.
The order tracks the language of § 6, except it fails to set out that all orders arising from cases referred to referees or masters shall be issued by the probate judge and in no event shall the referees or masters have the authority to issue a final order with respect to any matter referred to them.
Following the master's first hearing in this matter in March 1987, he filed "Findings of Fact and Conclusions of Law," which were followed by an order signed by the probate judge which read, "The Court finds that the above findings of fact and conclusions of law should be and are hereby adopted." However, as to all subsequent hearings the record is completely lacking in findings of fact or conclusions of law by the master, and nowhere in the record do we find that the master ever made "recommendations" to the probate judge.
*397 In fact, the only documents of record which relate to the issues presented at subsequent hearings are final orders. Each order fully recites the findings and conclusions pertaining to the Huttons' care of the children, decrees the rights of the parties, and concludes with the following (or substantially similar) language which appears at the conclusion of the order now on review:
THE COURT DOES, THEREFORE, CONSIDER, ORDER, ADJUDGE AND DECREE the above and foregoing.
IT IS SO ORDERED.
Blaine A. Jackson
JUVENILE REFEREE
BENTON COUNTY PROBATE
COURT
JUVENILE DIVISION
Oliver A. Adams
PROBATE JUDGE
In determining whether we have before us an order of the probate judge which was merely signed by the master but indicates an appropriate review by the probate judge, or whether the order was a final order entered by the master and merely cosigned by the probate judge, we look to the comments of "the master" at the conclusion of the hearing which resulted in the order of July 29 and quickly find the answer.
[The Master]The Court finds that some of the original conditions which necessitated removal from the home have not ever been removed since the filing of the Petition of December 13, 1984, and... [the] Court finds that Mr. and Mrs. Hutton are at this time unwilling and, even if willing, probably unable to make the changes necessary to properly care for, protect, train, educate and discipline their children, and continued removal of the children is necessary to provide the proper care for the children. The Court will, therefore, order that the children will continue in foster care at the present time; that the Arkansas Department of Human Services shall petition the Probate Court for guardianship with the right to consent to adoption as quickly as possible.
... If [appellants] can ... straighten things up and make the improvements, then this Court will entertain a Motion to Vacate that Order for Petition for Guardianship. [Emphasis ours.]
Obviously, we are dealing with a final order entered by the master reflecting his findings and judgments rather than those of the probate judge.
This situation brings us to the more significant issuethe propriety of the legislature's vesting circuit and probate judges with the power to appoint masters or referees to preside over juvenile cases who shall have all the authority and powers of the judges of their respective divisions. In Jansen v. Blissenbach, 214 Ark. 755, 217 S.W.2d 849 (1949), this court discussed the validity of Act 448, § 4, of 1941, which authorized chancellors to appoint a "referee in probate" in each county who would have the power to admit wills to probate and make:
proper orders in all cases where no contest or exceptions are filed, and make his report to the Court of his finding[s] of law and fact, for the further action of the Probate Court, in all cases where contests or exceptions are filed and heard by such Referee in Probate, and to do such other acts and perform all such other duties as may be ordered by the court appointing him.
The Act further provided that if no petition for review was filed within ninety days from entry of the referee's order, the order would become final as if performed by the chancellor.
In discussing the validity of section 4 of Act 448, this court noted that Ark. Const. art. 7, § 34, as amended by § 1 of Amendment 24, provided that the judge of the probate court shall try all issues of law and fact arising in causes or proceedings within the jurisdiction of the court. We went on to note that it was clear from the constitutional provision that exclusive original jurisdiction over matters relative to the probate of wills was vested in the "judge" of the probate court. 214 Ark. at 758, 217 S.W.2d 849. In concluding our discussion of the constitutionality of Act 448, we said,
*398 To say the Legislature had such power would clothe that body with authority to create a second or deputy probate judge in the several counties and this it may not do under the Constitution. It follows that § 4 of Act 448 of 1941 is an unauthorized grant of legislative authority and, therefore, unconstitutional and void.
See also Mills v. Latham, 215 Ark. 128, 219 S.W.2d 609 (1949). The conclusions reached in Jansen apply with equal force to our consideration of § 6 of Act 14 of 1987.
We recognize that to facilitate the handling of juvenile matters, § 6 of Act 14 granted the circuit and probate courts the right to appoint masters or referees to aid judges in the performance of specific judicial duties as they arise. It was not the intent of the legislature to displace the judges of the respective courts, and with that limitation in mind, § 6 of Act 14 was drafted to provide that all orders arising from cases referred to the referees or masters should be issued by the circuit or probate judges and that the referees or masters should only submit recommendations and should in no event have the authority to issue final orders with respect to any matter referred to them.
However, the Act went further and gave the masters and referees authority and powers commensurate with the judges of their respective divisions, including "such power as may be granted by the judges of said divisions to hear juvenile cases." Whether intended or not, the net effect, as evidenced by the order of the probate court appointing the master in this case, and by the facts of record, was to create substitute judges contrary to the provision in Ark. Const. art. 7, § 34, that the judge of the probate court shall try all issues of law and fact arising in causes or proceedings within the jurisdiction of that court. Accordingly, § 6 of Act 14 of 1987 is unconstitutional and void. Since § 6 applies with equal force to the use of masters in juvenile cases pending in circuit court, a similar conflict arises with respect to those courts.
In State v. Nelson, 246 Ark. 210, 438 S.W.2d 33 (1969), this court discussed the permissible functions of special masters.
[T]he chancellor appointed a special Master, and instructed him to prescribe rules for the expeditious and orderly progress of the tasks with which he was charged, and to proceed with hearing [the] evidence and ruling upon all matters of fact and law incident thereto ... In this respect, the trial court was proceeding illegally... [T]he chancellor should hear the cause upon the pleadings and such evidence as may enable him to determine the principles to be applied in adjusting the equities of the parties and then make a reference to a master for such special inquiries or statements of accounts as may aid the court in making a definite decree ... [T]he United States Supreme Court [has] stated that the use of masters was to aid judges in the performance of specific judicial duties as they arise and not to displace the court. [The Court] held that the appointment of a master and a reference at the inception of the case to take evidence and to report the same to the court with his findings of fact and conclusions of law was an action beyond the court's powers.
We stated in Nelson that to support the reference by reason of anticipation of a lengthy trial, complexity of the issues and congestion of the court's calendar does not constitute sufficient grounds for the virtual displacement of the court by a special master.
While we can conceive of situations in which a reference of particular matters may be made to a master during the course of litigation, a reference as broad as the one involved here is clearly in excess of the court's jurisdiction and in that respect the court proceeded without authority of law.
Id. at 219-220, 438 S.W.2d 33. The same statements ring true in this case. See also Gipson v. Brown, 295 Ark. 371, 749 S.W.2d 297 (1988).
Excessive utilization of masters has been a serious concern of this court as recently noted by Justice Hickman in his concurring *399 opinion in Walker, supra. "Referees and masters are simply substitutes for the judge, and there is no place in our judicial system for permanent substitutes for judges." 291 Ark. at 54, 722 S.W.2d 558. In that same vein, this court promulgated Rule 53(b) of the Arkansas Rules of Civil Procedure which specifies that the reference to a master shall be the exception and not the rule and, except in matters of accounting and difficult computation of damages, the reference shall be made only upon a showing that some exceptional condition requires it.
Having reviewed the record in this case, we are convinced that the participation of the juvenile master in the case before us far exceeded that permitted by our constitution, our case law, and ARCP Rule 53(b). Additionally, § 6 of Act 14 of 1987 impermissibly authorizes circuit and probate judges to appoint masters or referees to hear juvenile cases with such powers as may be granted by the circuit and probate judges and purports to vest those masters or referees with all the powers and authority of the judges. As such, § 6 of Act 14 of 1987 is unconstitutional.
Our opinion in Fortin v. Parrish & Reeves, 258 Ark. 277, 524 S.W.2d 236 (1975), contains dicta on the use of juvenile masters. We overrule Fortin to the extent that it is inconsistent with the position adopted in this opinion.
We recognize that in Fortin it was determined that the master would, in any event, be considered a de facto judicial officer whose acts would be valid even though his "title" might be derived from legislation found to be unconstitutional. Notwithstanding that the master might have the position of an officer de facto whose acts are binding as though done by one in office de jure, we have already determined that the case before us must be reversed in any event since the acts of the master were otherwise invalid once his participation exceeded that permitted by law.
Finally, it is well settled that where a statute or code provision is unconstitutional in part, the valid portion of the act will be sustained if complete in itself and capable of execution in accordance with apparent legislative intent. Jansen, supra. See also Ark.Code Ann. § 1-2-117 (1987). Since the remaining portions of Act 14 of 1987 are complete and capable of execution, they are not affected by this opinion.
In light of the foregoing, we reverse and remand to the probate court for such proceedings before the probate judge as are warranted under the circumstances to best serve the health, well being, and best interest of Christina and Lisa Hutton. In that regard the probate judge may, of course, employ the services of the master to the extent permitted by Rule 53 and should, pursuant to subsection (e), accept the master's findings of fact unless clearly erroneous or, after a hearing, adopt, modify, or reject the master's report as provided in subsection (e)(2). As in Walker, supra, it would be desirable to make our ruling prospective, but we do not have the power to hold a constitutional mandate in abeyance. City of Hot Springs v. Creviston, 288 Ark. 286-A, 713 S.W.2d 230 (1986).
Jurisdiction of the Probate Court
The Huttons' next point is that the exercise of jurisdiction over dependent-neglected juveniles is not a permissible function of the probate courts under the Arkansas Constitution. We disagree.
As noted previously, this court held in Walker v. Arkansas Dep't. of Human Services, 291 Ark. 43, 722 S.W.2d 558 (1987), that the exercise of exclusive jurisdiction over juveniles is not a permissible function of the county courts under the Arkansas Constitution. Our opinion specifically noted that Act 215 of 1911 had established a new court, known as the "Juvenile Court," to be administered by the county judges, in contravention of Ark. Const. art. 7, § 1, which prohibits the creation of courts other than those provided for in the constitution. Further, the jurisdiction of county courts as set forth in Ark. Const. art. 7, § 28, did not encompass the jurisdiction of juvenile matters.
In Walker, we overruled former case law which conflicted with our new position, and we concluded with the statement that the *400 matter of achieving a constitutional system for the administration of juvenile matters would be left to the legislaturethe body equipped and designed to perform that function. 291 Ark. at 51, 722 S.W.2d 558.
In response to the decision in Walker, the legislature found that the impact of our decision upon the administration of the juvenile justice system of this state created a state of urgency necessitating the immediate designation of an appropriate court or courts within the judicial structure of the state to exercise jurisdiction over juvenile matters formerly vested in the juvenile court, until such time as more permanent provisions could be made. Act 14 of 1987. The Act provided that all jurisdiction, powers, functions, and duties of the juvenile court and of the county judge as judge of the juvenile court, as provided in the Arkansas Juvenile Code of 1975, and laws amendatory and supplemental thereto, would be vested in a juvenile division of the circuit courts of this state with respect to juvenile delinquents, and in a juvenile division of the probate courts with respect to juveniles in need of supervision and dependent-neglected juveniles.
The Arkansas Constitution, Article 7, § 34, as amended by Amendment 24, provides that in each county the judge of the court having jurisdiction in matters of equity shall be the judge of the court of probate, and shall have such exclusive original jurisdiction in matters relative to the probate of wills, the estates of deceased persons, executors, administrators, guardians, and persons of unsound mind and their estates, as is now vested in courts of probate, or may be hereafter prescribed by law. The italicized words distinguish the jurisdiction of the probate courts from that of the county courts in the critical sense that the jurisdiction which may be vested in the probate courts can be altered by act of the legislature.
Accordingly, in Carpenter v. Logan, 281 Ark. 184, 662 S.W.2d 808 (1984), and Hilburn v. First State Bank of Springdale, 259 Ark. 569, 535 S.W.2d 810 (1976), this court emphasized that the jurisdiction of the probate court extended only to such matters as were expressly conferred by the constitution, or by statute, or as were necessarily incidental thereto. To that effect, Ark.Code Ann. § 28-1-104 (1987) now provides that the jurisdiction of the probate courts of this state extends, for example, to matters of adoption and to the persons and estates of minors. Ark.Code Ann. § 16-10-126 (1987) provides that the chancery and circuit courts of this state may authorize the Arkansas Department of Human Services to provide investigative assistance to the probate courts as to actions in probate concerning the guardianship of minors.
While we might resolve this issue on the basis of the express power of the probate courts to exercise jurisdiction over matters concerning the guardianship of minors, or over the persons of minors, we need only observe that the legislature has the power to enlarge upon the jurisdiction of the probate courts of this state. As such, it was within the power of the legislature to transfer the jurisdiction of matters touching upon juveniles in need of supervision and dependent-neglected juveniles to the probate court of each county.
At this juncture, we find it appropriate to note that Ark. Const. amend. 67, which deals with the jurisdiction of matters relating to juveniles and bastardy and which became effective as of January 1, 1989, reads in part as follows:
SECTION 1. The General Assembly shall define jurisdiction of matters relating to juveniles ... and matters relating to bastardy and may confer such jurisdiction upon chancery, circuit or probate courts, or upon separate divisions of such courts, or may establish separate juvenile courts upon which such jurisdiction may be conferred, and shall transfer to such courts the jurisdiction over bastardy and juvenile matters now vested in county courts by Section 28 of Article 7 of this Constitution.
We conclude that jurisdiction of the case before us was proper in the probate court of Benton County. Having determined that this case must be reversed and remanded because the master's participation *401 exceeded that permitted by law and because § 6 of Act 14 of 1987 is unconstitutional and void, we do not respond to the Huttons' other point challenging the sufficiency of the evidence.
Reversed and Remanded.
HAYS, J., dissents.
HAYS, Justice, dissenting.
I respectfully disagree with the majority that Section 6 of Act 14 of 1987 is unconstitutional.[1] The majority ignores a cardinal rule of appeal and error in addressing points not first presented to the trial court, but rather decides a constitutional question sua sponte. We have repeatedly declined to consider even constitutional issues which are not first presented to the trial court. Chapin v. Stuckey, 286 Ark. 359, 692 S.W.2d 609 (1985); Pope County v. Streett, 284 Ark. 416, 682 S.W.2d 749 (1985); Scottish Union & National Ins. Co. v. Wilson, 183 Ark. 860, 39 S.W.2d 303 (1931). And what of the attorney general? Ark.Code Ann. § 16-111-106 (1987) requires that the attorney general be given the opportunity to defend a statute against constitutional attack, and failure to do so is error. Prater v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987).
The majority characterizes the constitutionality question as one of subject matter jurisdiction so as to provide this court with the proper avenue for raising this issue on our own. Although it is a well settled rule that subject matter jurisdiction may be raised for this first time on appeal, Venhaus v. Hale, 281 Ark. 390, 663 S.W.2d 930 (1984), subject matter jurisdiction involves a court's competence to hear a particular category of cases and the facts of this case involve the allocation of power. This appeal is from the orders of the probate judge. Surely the majority is not holding that orders of the probate court entered pursuant to Act 14 are rendered void by the retroactive operation of today's holding. If so, I venture that will prove to be a difficult precedent to live with.
There is another compelling reason why the case should be affirmed. From the outset in 1984, the orders (and there are many, eighteen by actual count) were all signed by a referee or master and, following Act 14, were then approved by the probate judge. At no time until they reached this court did appellants ever object to the procedure or complain about the case being heard by a master or referee, or object that the master was exceeding his authority. No objection on any basis now argued on appeal appears throughout this entire record. The rule is almost universally recognized and followed that a party waives objection to the functioning of the master where not timely made. "If a party appears and participates in the taking of evidence before a master without objection, he cannot question the authority of the master to act, although the order or reference is defective or although no order referring the case to the master has been entered." Corpus Juris Secundum, Vol 30A, § 531, p. 570. "If facts are known, parties are bound to make objections to disqualification of a master before issues are joined and before hearing commences, otherwise they will be deemed to have waived objection." DeMoville v. Merchants & Farmers Bank, 237 Ala. 347, 186 So. 704 (1939); Goodrum v. Merchants & Planters' Bank, 102 Ark. 326, 144 S.W. 198 (1912). Proctor v. Bank of New Hampshire, 123 N.H. 395, 464 A.2d 263 (1983); Nystrom v. Nystrom, 105 So. 2d 605 (Fla. Dist.Ct.App.1958).
Appellants also complain in this court that the master failed to comply with ARCP Rule 53(e) in that he did not submit a report. However, the appellants registered no such complaint before the trial court. The master announced his findings and conclusions at the end of the hearing and the final order was not entered until some three months later, thus, appellants had ample opportunity to file objections. No objection on this, or any other ground, was ever offered in the trial court.
*402 The majority concludes that the case must be reversed because the participation of the juvenile master exceeded that authorized by law. The majority states the issue to be whether the probate judge appropriately reviewed the master's findings, or merely cosigned a final order entered by the master. What is important is whether the judge recognized that the master's findings were merely advisory and that he alone gave finality to the case. The appellants have not even attempted to show that the orders were not the final product of the probate judge. He approved each order and there is nothing to suggest he did not fully concur in them.
The majority states that "all masters and referees appointed to hear juvenile cases shall only submit recommendations to the probate judge." In fact, § 6 of Act 14 of 1987 also provides that a referee or master so designated (to hear juvenile cases) shall also have "all the authority and power of the judges of their respective divisions." Surely such power encompasses more than submitting mere recommendations. However, § 6 of Act 14 quite definitely prohibits masters or referees from issuing final orders. The legislature's intent as to what constitutes the "issuance" of a "final" order may be gleaned from the paragraph discussing the master's ability to issue temporary orders. A temporary order issued by a master becomes a "final" order after receiving the judge's approval and signature. Therefore, the essence of the issuance of a final order does not then turn on who drafted the order, but rather on who reviews, approves, and signs the order. Although the master drew up the order in this case, by signing the order the judge reviewed and approved such and thus issued the final order.
I do not see any objection to a statutory scheme providing for permanent masters, so long as a judge is the final arbiter. Masters have been recognized as a useful arm of the courts from an early date at common law.[2] The ongoing demands of following the progress of a family involving dependent-neglected children through rehabilitative regimens are far better suited to a master or referee than to a judge. I find no authority cited in the majority opinion for this abrogation of legislative authority.
Therefore, I would affirm the probate judge's orders.
NOTES
[1] Why Section 6 is singled out is not clear. The removal of Section 6 renders the act meaningless.
[2] Beginning with the reign of Edward III. Cyclopedic Law Dictionary, 2d Edition. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624699/ | 769 S.W.2d 678 (1989)
Jose Arecha VILLANUEVA, Appellant,
v.
The STATE of Texas, Appellee.
Nos. 01-87-00298-CR, 01-87-00299-CR.
Court of Appeals of Texas, Houston (1st Dist.).
April 6, 1989.
James M. Leitner, Bridgewater & Leitner, Houston, for appellant.
John B. Holmes Jr., Dist. Atty., Carrol M. Cameron, Carol Davies, Asst. Dist. Attys., Houston, for appellee.
Before EVANS, C.J., and SAM BASS and COHEN, JJ.
OPINION ON REMAND FROM THE COURT OF CRIMINAL APPEALS
COHEN, Justice.
The Court of Criminal Appeals remanded this cause for reconsideration of appellant's second and third points of error in light of its holding in Rose v. State, 752 S.W.2d 529, 552 (Tex.Crim.App.1988) (op. on reh'g). In his second and third points of error, appellant argued that the trial court erred by overruling his objection to the parole charge, Tex.Code Crim.P.Ann. art. 37.07, sec. 4(a). Ch. 576, sec. 1, 1985 Tex. Gen.Laws 2195, amended by ch. 66, sec. 1, 1987 Tex.Gen.Laws 170, amended by ch. 1101, sec. 15, 1987 Tex.Gen.Laws 3765. The parole charge is unconstitutional as a violation of the separation of powers doctrine and due course of law provisions of the Texas Constitution. Rose, 752 S.W.2d at 529.
In an unpublished opinion, this Court applied the harm analysis announced in Almanza v. State, 686 S.W.2d 157 (Tex.Crim. App.1984), and determined appellant was *679 not harmed by the inclusion of the unconstitutional parole charge. We are now instructed to consider whether appellant was harmed under the guidelines of Tex.R.App. P. 81(b)(2). Rose, 752 S.W.2d at 554.
Rule 81(b)(2) provides that this Court must reverse a judgment unless we determine, beyond a reasonable doubt, that the error did not contribute to the punishment. The State has the burden to show the absence of harm. See Taylor v. State, 755 S.W.2d 548, 550 (Tex.App.Houston [1st Dist.] 1988, pet. pending).
Appellant and two co-defendants forced their way into a home and abducted the complainants, a teenage male and the family housekeeper. The complainants were each blindfolded, bound at the hands and feet, and placed in the back of a vehicle. They were moved to different locations and kept blindfolded and bound throughout the entire ordeal.
The stepfather of the male complainant negotiated and delivered a $300,000 cash ransom that evening. Shortly thereafter, appellant's co-defendants were arrested. Officers recovered approximately $190,000 from the vehicle. The next morning, officers rescued the complainants from a house and arrested appellant. Approximately $8,000 was found on the appellant and in the house. Over $96,000 was never recovered.
The jury found appellant guilty of two aggravated kidnappings. They then assessed his punishment at 99 years imprisonment and a $10,000 fine in each case.
There are several factors we consider in determining whether appellant was harmed by a parole charge, including: (1) whether the trial court gave a curative instruction; (2) appellant's prior criminal record; and (3) the heinous nature of the crime. Rose, 752 S.W.2d at 554-55. We also view the entire record to determine whether parole was an issue considered during voir dire, argument, jury deliberation, or any other time. After viewing these factors, we conclude, beyond a reasonable doubt, that the parole instruction did not contribute to the punishment assessed.
The trial court gave both the statutory charge and an additional curative instruction. The instruction, like that in Rose, told the jury that they were not to discuss how long the accused would be required to serve under the sentence they imposed. The additional charge explained that the jury should not consider parole matters because such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and the Governor of the State. Compare Rose, 752 S.W.2d at 554.
Neither attorney mentioned parole during voir dire or during final arguments. We have been directed to no evidence in the record indicating that parole was an issue raised before the jury.
Although it was not shown that appellant had any prior convictions, extraneous offenses or arrests, or a bad reputation, the facts of the case are heinous. The kidnappers invaded a home at gunpoint, and bound, blindfolded, and abducted two victims, whom they held for $300,000 ransom. Only two-thirds of the ransom money was ever found. Appellant was arrested at the house where the victims were found, and he confessed in writing his involvement in the crime. He admitted that he gave his share of the ransom money to an associate, who was supposed to return it to appellant when they reunited in Mexico. Thus, the evidence showed appellant's premeditated involvement in the forceful kidnapping of a teenager and an adult to extort money from innocent victims. We conclude that these facts, not the parole charge, motivated the jury's assessment of the maximum punishment, not the informational charge on the parole law. As we remarked in our prior opinion, "[A]ny kidnapping is likely to arouse a jury's passion. What crime is more odious than stealing a child for money? What crime is harder for a jury to forgive? Until 1974, kidnapping was punishable by death in Texas." Moreover, the fact that appellant was tried jointly with two previously convicted co-defendants, both of whom were shown to have greater *680 involvement than appellant, likely affected the jury's decision.
The jury's assessment of the maximum punishment indicates their abhorrence for the perpetrators of the crime. The charge instructed the jury that appellant would not "become eligible for parole until the actual time served equals one-third of the sentence imposed or twenty years, whichever is less, without any consideration of any good conduct time...." The jury knew, therefore, that appellant would be eligible for parole in 20 years, whether they assessed a sentence of 60 years (1/3 of 60 = 20) or 99 years. They nevertheless assessed the longer sentence knowing it would not delay appellant's parole eligibility date. Thus, at least the last 39 years of appellant's 99-year sentence cannot be attributed to the parole instruction.
This case is distinguishable from Urbano v. State, 760 S.W.2d 33, 39 (Tex.App. Houston [1st Dist.] 1988, pet. pending), wherein this Court stated that the severe sentence might be considered as one factor indicating harm. We do not consider our statement in Urbano as having significant bearing on our decision in that case. In Urbano, the significant factor in the harm analysis was the fact that both the prosecutor and defense counsel argued the parole law during final arguments. See id. at 38-39. That factor is not present here.
We overrule appellant's points of error two and three. Having previously overruled appellant's remaining points of error in our original opinion, we need not readdress them here.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624694/ | 769 S.W.2d 450 (1989)
Thelma Ann STELLING, Appellant,
v.
Robert Lewis STELLING, Respondent.
No. WD 40587.
Missouri Court of Appeals, Western District.
April 18, 1989.
*451 Gary L. Stamper, Columbia, for appellant.
William D. Rotts, Columbia, for respondent.
Before NUGENT, P.J., and CLARK and FENNER, JJ.
NUGENT, Presiding Judge.
Petitioner Thelma Ann Stelling appeals from a portion of the decree dissolving her marriage to respondent Robert Lewis Stelling. The parties agreed that the marriage was irretrievably broken and that Mrs. Stelling should retain primary custody of the two children born of the marriage. Mrs. Stelling argues on appeal, however, that the $400 monthly child support award is insufficient and that the court erred in failing to award her maintenance or attorney fees. We affirm.
Mr. and Mrs. Stelling married in 1968. Their union produced two children: Lora Stelling, born October 20, 1973, and Julie Stelling, born September 7, 1976. Lora was born with Down's Syndrome and suffers from learning disabilities, although she does attend school. With the help of a tutor, she has progressed in her education. Julie was described as a bright student.
The parties separated shortly after Mr. Stelling's admitted involvement in an extramarital affair. The church that the Stellings attended subsequently removed Mr. Stelling from its membership rolls. He moved to the west coast and eventually found employment in Reno, Nevada.
Mr. and Mrs. Stelling both earned income from regular employment during their marriage. At the time of trial, Mrs. Stelling worked as a consulting dietitian. The court found that her gross income amounted to $1,299 per month, with a net income of $1,166 per month. Her expenses, including child care, tutoring for Lora, music lessons for both girls, and a regular tithe to her church, amounted to $1,862 per month. Mr. Stelling earned $1,906.66 per month from his employment as a laboratory technician. His net income amounted to $1,430 per month, and his expenses including charitable donations and payment on installment contracts totalled $1,325 per month.
The Stellings amassed a net marital estate worth approximately $200,000. That included a marital house worth $93,000 on twelve acres, three automobiles, a 6.2 acre tract of real estate, and a $39,000 mortgage and note from the sale of their business. No debt encumbered the home or the automobiles. The mortgage paid them $365 per month. After their separation, Mr. Stelling directed the mortgagor to make payments to Mrs. Stelling. The primary assets awarded to Mr. Stelling included the mortgage, the separate real estate, and two of the automobiles. His share of the property division amounted to $87,274. Mrs. Stelling received marital property worth $121,142, including: the house, its furnishings, and an automobile. The parties agreed that the children would each receive $10,000 custodianship accounts held in their names.
Following the hearing the court ordered both parties to submit proposed findings of fact and conclusions of law. The respondent submitted his proposed findings on March 8, 1988, and the court adopted that submission and then ordered the petitioner to prepare a decree. She submitted a decree, dated March 15, 1988, and the court signed it. That decree, however, differed from the findings of fact and conclusions of law that the trial court had previously accepted. The differences included a finding that the respondent's monthly expenses totalled $900 instead of the previously accepted $1,325, a $700 rather than a $400 monthly child support payment, additional restrictions on the respondent's visitation rights and an award of $1,500 attorney's fees. The decree awarded property to the wife that the original findings had allocated to the husband, including: 6.2 acres of real estate adjacent to the family home, the mortgage from the sale of the business, and a $4,500 investment account.
*452 The court signed the petitioner's decree. On March 25, 1988, the respondent filed a motion to set aside the decree. The court sustained that motion on March 29, 1988, and entered a decree that adopted and substantially conformed to the previous findings of fact and conclusions of law. In the portions of the decree from which Mrs. Stelling now appeals, the court entered a child support order of $225 per month for Lora and $175 per month for Julie. It denied Mrs. Stelling's requests for maintenance and an attorney's fee.
In her first point on appeal the petitioner argues that the court abused its discretion in setting aside its original decree and entering a decree that reduced the aggregate child support award from $700 per month to $400 per month.
This issue arises in large part because neither the original findings of fact and conclusions of law nor the original decree could truly be said to reflect the court's judgment. Mr. Stelling's attorney prepared the findings of fact and Mrs. Stelling's counsel prepared the original decree. Both documents betray their partisan origins. Besides the differences listed above, the language contained in the documents reflects their partisan nature. The husband's findings of fact implicitly accuse the wife of neglect, of misleading the court and of misusing court procedures. They explicitly condemn the wife for acting unjustly and unfairly and for publicly embarrassing respondent, undermining respondent's community, social and religious affiliations, all causing Respondent to move to another state.[1]
The wife's proposed decree also exuded partisanship. It undermines the husband's credibility, emphasizes his marital misconduct and praises the wife's industry and generosity. Ironically enough, the wife's proposed decree finds that the husband acted unjustly and unfairly and accuses him of publicly embarrassing her, undermining her community, social and religious affiliation, all causing her public embarrassment and humiliation.
When a court adopts verbatim a party's proposed findings of fact and conclusions of law no per se error occurs. Ederle v. Ederle, 741 S.W.2d 883, 884-85 (Mo.App.1987); Binkley v. Binkley, 725 S.W.2d 910, 911 (Mo.App.1987). However, the problems that resulted in this case could have been avoided by adherence to the Binkley court's admonition:
Acceptance, in toto, of an advocate's proposed findings of fact, conclusions of law and decree in a contested case, while not per se erroneous, is of doubtful utility, Leady v. State, 714 S.W.2d 221, 222 (Mo.App.1986). Memorandum from counsel can be helpful to the trial court in drafting its decree. The final decree however, is the court's decree not counsel's. Even the most conscientious advocate cannot reasonably be expected to prepare a document which would reflect precisely the trial court's view of the evidence.
725 S.W.2d at 911, n. 2.
We recognize that trial counsel may provide the court with valuable assistance in dealing with a full docket. Counsel will better serve the court, however, if they save their argument and partisanship for the trial and the briefs. A document submitted as the judgment of the court should be free of partisan hyperbole and bile. Correspondingly, the trial court should critically examine the parties' submissions and employ only those portions of them that accurately describe the court's judgment. The decree should reflect the "necessary judicial consideration and polish" expected in such a document. Kreitz v. Kreitz, 750 S.W.2d 681, 684 (Mo.App.1988) (reversing in part because of legal errors in the decree prepared by a party).
Nevertheless, our review of the record reveals no ground for reversal. An appellate court will presume that the trial court properly applied the law unless the record contradicts that presumption. Ederle, supra, *453 741 S.W.2d at 885. The trial court's review of the decree upon the respondent's motion and its decision to replace that decree with the March 29 decree show the "necessary judicial consideration" of the issues before it. Therefore, we will reverse the decision regarding child support only on a showing that the court abused its discretion. Hogrebe v. Hogrebe, 727 S.W.2d 193, 195 (Mo.App.1987).
Here, we find no abuse of discretion. The court considered the income and expense statements filed by each party. According to those documents, the $400 monthly child support award will fail to make up the gap between the petitioner's expenses and her income but will also cause a shortfall for the respondent. The shared burden reflects an appropriate balancing of interests by the trial court. See Mueller v. Jones, 583 S.W.2d 222, 224 (Mo. App.1979) (the trial court properly distributed the burden of supporting the child between parents with scarce resources). In light of Mrs. Stelling's continued income from her employment and the distribution to her of the marital home and an automobile, both unencumbered by debt, we find no abuse of discretion in the $400 child support award.
Petitioner's next point alleges error in the trial court's refusal to award her maintenance. The portion of her argument under this point asserting that she lacked sufficient marital property and income to meet her reasonable needs lacks merit. She received free of debt a $93,000 home with all of its furnishings and a 1986 automobile. She earns $1,299 per month from her employment and receives $400 monthly child support. Those circumstances do not support a finding that the court abused its discretion in failing to award her maintenance. See Featherston v. Featherston, 710 S.W.2d 288, 291-92 (Mo.App.1986) (although wife had no job at the time of divorce, the trial court properly refused maintenance where wife received $64,000 worth of real estate and an automobile). Although her income and the child support failed to supply sufficient funds to meet her monthly expenses, the court's disposition leaves Mr. Stelling with a shortfall as well. When a maintenance award will leave the obligor unable to meet his own needs, the trial court need not award maintenance sufficient to meet all of the needs of the party seeking maintenance. Stoerkel v. Stoerkel, 711 S.W.2d 594, 594 (Mo. App.1986) (reducing maintenance award from $1,200 to $600).
Alternatively, Mrs. Stelling argues that because of her responsibility to care for a disabled child, the court should have at least kept the issue of maintenance alive by awarding a nominal amount. She cites McBane v. McBane, 553 S.W.2d 521 (Mo. App.1977), to support that proposition. In McBane, the wife, although employed at the time of divorce, suffered from chronic back problems. Because aggravation of those problems could remove her ability to work, the court modified the trial court's decree to include a $1.00 annual maintenance award. By so doing the court kept alive the issue of maintenance should the wife's health problems change her financial needs. Id. at 524.
The McBane reasoning does not apply to the instant case. Here, Mrs. Stelling seeks to keep the maintenance issue alive not because of her own disability but because of her daughter's anticipated future needs. Child support, however, will adequately provide for those needs. Not only may the support be increased if Lora's circumstances change, see § 452.370[2], but Missouri statutes now provide that the court may extend support obligations for a physically or mentally incapacitated child beyond the age of eighteen. § 452.340.4[3] Because the existing law provides adequate measures to insure Lora's continuing support, we see no need to extend McBane to the present circumstances.
Finally, Mrs. Stelling argues that the court abused its discretion by failing to award her attorney fees. This point has no merit. The record reveals no actions by *454 Mr. Stelling that would increase Mrs. Stelling's costs of pursuing the instant litigation. Although Mr. Stelling's income exceeds that of Mrs. Stelling, we find no disparity sufficient to warrant a finding that the trial court abused its discretion.
Accordingly, we affirm the trial court's decision.
All concur.
NOTES
[1] In fairness to the husband, we note that his proposed findings admitted the wife's fitness as a parent and his marital misconduct. It also provided for the wife to receive a larger share of the marital estate.
[2] Revised Statutes of Missouri, 1986.
[3] Revised Statutes of Missouri, Supp.1988. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2409719/ | 719 S.W.2d 904 (1986)
Kenneth J. GREENING, Mary Sue Greening, and Ford Lane Executive Center, Inc., Plaintiffs-Appellants,
v.
Marvin KLAMEN, Defendant-Respondent.
No. 50454.
Missouri Court of Appeals, Eastern District, Division One.
September 30, 1986.
Motion for Rehearing and/or Transfer Denied October 29, 1986.
Application to Transfer Denied December 16, 1986.
*905 Mark Belz, Belz & Belz, Clayton, Mo., for plaintiffs-appellants.
Lawrence B. Grebel, Brown, James & Rabbitt, P.C., St. Louis, Mo., for defendant-respondent.
Motion for Rehearing and/or Transfer to Supreme Court Denied October 29, 1986.
CARL R. GAERTNER, Presiding Judge.
The Greenings and Ford Lane Executive Center, Inc. (FLEC), plaintiffs below, appeal from an order dismissing four counts of a six count petition and an order granting summary judgment as to the other two. We affirm in part, reverse in part and remand.
This matter is on appeal for the third time. A complete discussion of the facts underlying the original dispute can be found in our first opinion, Greening v. Klamen, 652 S.W.2d 730 (Mo.App.1983). The dismissal of a subsequent appeal for lack of a final judgment is at Greening v. Klamen, 683 S.W.2d 298 (Mo.App.1984). A recital of those facts pertinent to this appeal follows.
Greenings are the sole shareholders of FLEC. In October 1977, Greening and FLEC each retained defendant Marvin Klamen, an attorney, to represent their respective interests in then pending bankruptcy reorganization proceedings for FLEC. A fee agreement was made at that time. In November, 1977, defendant informed plaintiffs that continued legal representation was contingent upon a new fee arrangement. After plaintiffs refused to accept the new fee proposal, defendant sent a letter to plaintiffs accusing them of improper behavior, and also sent copies to several others involved directly or indirectly in the reorganization proceedings. Defendant then withdrew as plaintiffs' counsel in January, 1978.
Plaintiffs sued, filing an eight count petition[1] that was dismissed with prejudice. On appeal, we remanded the case with respect to two breach of contract counts and specifically held the others each failed to state a cause of action, affirming that part of the judgment.
On remand, in response to defendant's demand for a more definite statement, plaintiffs filed an amended petition which contained not only the breach of contract claims previously upheld, but also variants of legal malpractice and intentional tort counts previously pleaded by Greenings and new legal malpractice and intentional tort claims by FLEC. (Counts III-VI). All of these other counts were based on the facts underlying the original petition. Defendant's motion to dismiss counts III-VI was promptly granted on the basis that our decision in Greening, 652 S.W.2d 730 (Mo. App.1983) was res judicata. We agree.
Res judicata precludes the same parties from relitigating the same causes of action. Nelson v. Missouri Division of Family Services, 688 S.W.2d 28 (Mo.App. 1985). In their first amended petition, Greenings attempted to allege causes of *906 action for legal malpractice and intentional tort. Those counts were dismissed and the dismissal affirmed because the counts failed to state a cause of action. A dismissal for failure to state a cause of action is sufficient to raise res judicata in a later proceeding, Pic-Walsh Freight Co. v. Cooper, 618 S.W.2d 449, 454 (Mo.App.1981), and it is immaterial that the wording of the counts has been changed in an apparent attempt to correct the defects in the original pleadings. We hold the attempt by Greenings to replead legal malpractice and intentional tort on remand in counts III and V was properly dismissed as barred by res judicata.
The doctrine of res judicata applies not only to those points actually raised, but also to "every point which properly belongs to the litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." Moore v. Beck, 664 S.W.2d 15, 18 (Mo.App.1984) (quoting Autenrieth v. Bartley, 238 Mo. App. 55, 176 S.W.2d 546, 549 (1943)). In counts IV and VI FLEC asserts legal malpractice and intentional tort claims based on the same essential facts as the legal malpractice and intentional tort claims made by Greenings in the first amended petition. Clearly FLEC should have also pleaded these claims in the first amended petition: all of the facts giving rise to the causes of action were known at that time and no reason for not making the claims then has been given. Therefore, the attempt in counts IV and VI by FLEC to plead legal malpractice and intentional tort was properly dismissed as barred by res judicata.[2]
Plaintiffs argue that notwithstanding the doctrine of res judicata, the "letter and spirit" of Rule 67.06 dictate a right to amend counts which have been dismissed even after we have affirmed the dismissal. We decline to so interpret the rule. The structure and words of Rule 67.06 clearly indicate it contemplates the request for leave to amend be made before judgment of dismissal with prejudice becomes final. Having failed to timely make such a request, plaintiffs are in no position to complainthere is no requirement that the trial judge sua sponte grant leave to amend a deficient pleading. Mullen v. Renner, 685 S.W.2d 212, 214 (Mo.App.1984). That part of the order dismissing Counts IV and VI is affirmed.
Summary judgment is properly granted only if the pleadings, depositions and any affidavits indicate no issue as to any material fact exists and that the moving party is entitled to judgment as a matter of law. Rule 74.04(c). The party granted summary judgment must show both entitlement to it affirmatively and that the other party would not be entitled to recover under any discernible circumstances. First National Bank, Paragould, Arkansas v. South Side National Bank, 644 S.W.2d 377, 379 (Mo. App.1982) (quoting Brummet v. Livingston, 384 S.W.2d 101, 103 (Mo.App.1964)). Our review of a summary judgment is equivalent to review of a court-tried case: if as a matter of law the judgment is sustainable on any theory it must be affirmed. McCready v. Southard, 671 S.W.2d 385, 387 (Mo.App.1984).
The trial court here granted summary judgment on the basis of the pleadings, defendant's answer and memoranda filed by both sides, defendant's incorporating the order and memorandum of the bankruptcy court judge on his request for compensation. In reviewing the evidentiary support for an order of summary judgment, we view it in the light most favorable to the parties against whom the judgment was rendered, according them the benefit of every doubt. Eugene Alper Construction Co., Inc. v. Joe Garavelli's of West Port, Inc., 655 S.W.2d 132, 135 (Mo.App. 1983).
Defendant argues that he is not liable because his withdrawal was for good cause, and that therefore, summary judgment *907 was appropriate. We will assume, without needing to decide, that an attorney who withdraws for good cause ("good" meaning reasonable or justifiable) is not liable for damages on account of his neglect through withdrawal. See 7A C.J.S. Attorney and Client § 221 (1980). However, we find nothing in the record conclusively establishing that defendant withdrew for good cause. Defendant refers to paragraph 10 of plaintiffs' petition as reflecting "some of the problems which had developed between the defendant and his clients, which prevented the defendant from effectively serving the needs of his clients." Paragraph 10 merely summarizes the contents of a letter describing Greenings' misconduct sent to Greenings (with copies to others)nowhere do plaintiffs admit any factual basis for those allegations and defendant in his answer denied paragraph 10. No other grounds even purporting to support good cause for withdrawal appear in the record. Summary judgment cannot therefore be upheld on the basis that defendant withdrew with good cause.
Defendant also argued in support of his motion for summary judgment that he justifiably withdrew because he had the permission of the bankruptcy court to withdraw. The approval of the court is a prerequisite to the right to withdraw in a civil case, but such approval will not relieve the attorney of any civil liability for breach of his duty to his client. Fisher v. State, 248 So. 2d 479, 486 (Fla.1971). Thus, the mere fact of approval by the bankruptcy court does not support summary judgment.
Defendant's next argument is that plaintiffs did not allege prejudice in any way. Presumably defendant refers to plaintiffs apparent lack of objection to his withdrawal at the time it was effected, as plaintiffs clearly claim prejudice in their petition. We find no authority and defendant has cited us none which would require plaintiffs to object at the time of withdrawal in order to preserve this later action, and we decline to adopt such a rule.
Defendant's final contention is that summary judgment was appropriate as plaintiffs are not entitled to recover because his fees were approved by the bankruptcy court. We find this, too, unpersuasive. Any breach of the contract between defendant and Greenings would be outside the subject matter jurisdiction of the bankruptcy court as a private controversy not related to matters pertaining to bankruptcy. First National Bank and Trust Co. of Guthrie, Oklahoma v. Sand Springs State Bank of Sand Springs, Oklahoma, 528 F.2d 350, 353 (10th Cir.1976). Therefore, the allowance of some of defendant's fee request by the bankruptcy court is not relevant to Greenings' breach of contract claim. With respect to the contract defendant had with FLEC, the bankruptcy court could have denied defendant his fees, because of wrongdoing, but it did not have jurisdiction to also assess money damages resulting from such wrongdoing. Red Carpet Corp. of Panama City Beach v. Miller, 708 F.2d 1576, 1577 (11th Cir.1983). The denial of fees where there has been wrongdoing is not mandatory and we do not infer the absence of misfeasance or nonfeasance from the allowance of some compensation to defendant for services rendered before withdrawal.
The gist of the breach of contract claim asserted by plaintiffs is that defendant agreed to represent them for a retainer, which was paid, and an hourly fee not to exceed a specified total amount, but that after entering into such representation he failed to perform his obligation. Nothing asserted by defendant in support of his summary judgment motion refutes these facts. On the contrary, the record discloses a continuing dispute not over the terms of the agreement or defendant's failure to perform, but over the question of whether his failure was based upon plaintiffs' refusal to agree to a different fee arrangement or was justified by other problems which developed. The continuation of this dispute precludes summary judgment. Accordingly, the order of summary judgment is reversed and the cause *908 remanded for further proceedings not inconsistent with this opinion.
SMITH and SNYDER, JJ., concur.
NOTES
[1] Two counts of libel originally pleaded were subsequently dismissed by plaintiffs and do not concern us here.
[2] This case clearly involves an attempt by plaintiffs to relitigate entire claimsnot individual issuesalready judicially determined. Res judicata is therefore the applicable doctrine and we ignore plaintiffs' discussion of issue preclusion as it is not relevant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2409721/ | 661 F. Supp. 2d 495 (2008)
Shahid QURESHI, Petitioner
v.
ADMINISTRATIVE APPEALS OFFICE OF the BUREAU OF UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES, Robert P. Weimann, Evangelia A. Klapakis, United States Immigration & Customs Enforcement, and James T. Hayes, Jr., Respondents.
Civil Action No. 1:08-CV-2282.
United States District Court, M.D. Pennsylvania.
October 15, 2008.
*496 Daniel M. Pell, Daniel M. Pell, Attorney-at-Law, York, PA, for Petitioner.
Dennis Pfannenschmidt, Michael J. Butler, United States Attorney's Office, Harrisburg, PA, for Respondents.
MEMORANDUM
CHRISTOPHER C. CONNER, District Judge.
Presently before the court is a petition for writ of habeas corpus (Doc. 1) filed by Shahid Qureshi ("Qureshi") pursuant to 28 U.S.C. § 2241. Qureshi challenges the denial of his application to adjust status under 8 U.S.C. § 1255a of the Immigration and Nationality Act ("INA") and seeks an order directing the following parties to adjust his status to that of lawful permanent resident: the Administrative Appeals Office of the Bureau of United States Citizenship and Immigration Services ("AAO"); Robert P. Weimann, chief of the AAO; Evangelia A. Klapakis, district director of the Philadelphia District of the United States Citizenship and Immigration Services ("USCIS"); United States Immigration and Customs Enforcement ("USICE"), and; James T. Hayes, Jr., director of USICE (collectively, "respondents").[1] For the reasons that follow, Qureshi's petition will be denied.
I. Statement of Facts & Procedural History
Qureshi is a native and citizen of Pakistan who originally entered the United States on March 13, 1974. (Doc. 1 ¶ 11.) He was authorized to remain within the country for twelve days. (Id.) Qureshi overstayed this authorization, and on April 22, 1974, customs officials initiated deportation proceedings. (Id. ¶ 12.) Qureshi was thereafter found deportable, but granted voluntary departure until January 15, 1976.[2] (Id.)
Prior to his voluntary departure date, Qureshi married Odean Burdett ("Burdett"), a United States citizen, and received approval for an immediate relative petition on November 12, 1974.[3] (Id. ¶ 13.) *497 Qureshi and Burdett divorced in late 1975. (See id. ¶ 14.) During an interview at the United States Consulate on January 29, 1976, however, Qureshi falsely stated that he was still married to Burdett. (Id.) He was thereafter prosecuted under § 1306(c) of the INA for "false statements and representations on an application for Immigration Visa and Alien Registration," and sentenced to five years' probation. (Id. ¶ 15.)
On February 10, 1979, Qureshi married Carolyn Aletha Walden ("Walden"), a United States citizen. (Id. ¶ 16.) Walden filed an immediate relative visa petition on Qureshi's behalf on February 14, 1980. (Id. ¶ 17.) This petition was denied, and on August 24, 1981, Qureshi was ordered to show cause why he should not be deported as (1) a person excludable at his last date of entry in February 1976, and (2) due to his conviction for false statements to the United States Consulate. (Id. ¶¶ 17-18.) Notwithstanding the show cause order, it appears that no further action was taken on Qureshi's case for several years and Qureshi simply remained in the country. In January 1986, he was arrested for possession of heroin, but the charges were subsequently dropped. (Id. ¶ 21.)
In September 1988, Qureshi contacted the Department of Justice's Office of Professional Responsibility in Brunswick, Georgia, to volunteer information pertaining to a shipment of hashish arriving from Pakistan. (Id. ¶ 22.) Qureshi claims that agents of the Immigration and Naturalization Service[4] ("INS") and Drug Enforcement Agency ("DEA") promised that he would be granted a green card and could remain in the United States if he continued to provide them with drug trafficking information. (See Doc. 1, Exs. 1-4.) On May 31, 1989, however, the American Consul in Toronto informed Qureshi that it suspected him of continued, active involvement in drug trafficking offenses. (See Doc. 1 ¶ 25.) On this basis, Qureshi was denied eligibility to obtain an immigrant visa. (Id.)
In early 1991, Qureshi was once again placed into exclusion proceedings. (See id. ¶ 27.) Immigration officials charged him as "a person believed to be involved in drug trafficking," and claimed that he lacked proper entry documents. (Id.) On January 26, 1993, an immigration judge in Atlanta, Georgia sided with the government on both charges and held that Qureshi was excludable from the United States. (Id. ¶¶ 27-28.) The judge thereafter granted a change of venue to Hartford, Connecticut for a hearing on Qureshi's application to withhold exclusion, and for asylum. (Id. ¶ 28.) The Hartford immigration judge to whom the case was transferred denied Qureshi's application for asylum and found him deportable on September 23, 1993. (Id. ¶ 29.) Qureshi appealed the order of deportation to the Board of Immigration Appeals ("BIA"), which then vacated the order in part. Specifically, the BIA panel rejected the earlier finding that Qureshi was excludable because he was involved in the trafficking of narcotics, but affirmed the finding that Qureshi did not possess lawful permanent resident status, and was consequently excludable on that basis. (Doc. 1, Ex. 7 at 3-4.)
*498 Qureshi nonetheless continued to reside in the United States as an alien for the next nine years. On June 4, 2002, he filed an application to adjust status in another attempt to acquire lawful permanent residency. (Doc. 1 ¶ 31.) USCIS denied the application on November 26, 2004. (Doc. 1, Ex. 10.) Qureshi subsequently appealed this decision to the AAO, and on June 20, 2008, his appeal was denied. (Doc. 1 ¶ 34.) Qureshi appealed the AAO's ruling to the Third Circuit Court of Appeals; on August 28, 2008, the Third Circuit dismissed Qureshi's petition for lack of subject matter jurisdiction, holding that the application to adjust status was unreviewable because it was not accompanied by a final removal order. (See Doc. 1, Ex. 12 at 2-3) (reproducing decision in Qureshi v. Attorney Gen., Civ. A. No. 08-3128 (3d Cir. Aug. 28, 2008)). The instant petition for habeas corpus relief was filed on December 19, 2008. The petition has been fully briefed and is ripe for disposition.
II. Discussion
Section 2241 of Title 28 of the United States Code provides district courts with authority to order the release of prisoners from unconstitutional conditions of federal confinement. In order for a federal court to exercise jurisdiction over a habeas claim in the immigration context, "the petitioner must be in the `custody' of the federal immigration agency." Kumarasamy v. Attorney Gen., 453 F.3d 169, 172 (3d Cir.2006). However, the custody requirement does not necessitate that a petitioner be held in physical detention, see Jordon v. Attorney Gen., 424 F.3d 320, 324 n. 6 (3d Cir.2005) ("[P]hysical detention is not required for a petitioner to meet the `in custody' requirement of § 2241."); aliens subject to a final order of deportation are also considered to be `in custody' for purposes of petitioning the courts for habeas relief, see, e.g., Ogunwomoju v. United States, 512 F.3d 69, 74 n. 8 (2d Cir.2008); Rosales v. Bureau of Immigration & Customs Enforcement, 426 F.3d 733, 735 (5th Cir.2005); Garcia-Echaverria v. United States, 376 F.3d 507, 511 (6th Cir.2004); Simmonds v. INS, 326 F.3d 351, 356 (2d Cir.2003); Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291-92 (10th Cir.2001); Nakaranurack v. United States, 68 F.3d 290, 293 (9th Cir.1995).[5]
Qureshi claims that he is subject to a final order of removal dating from 1993 and "faces deportation from the United States if this Petition for Habeas is denied." (Doc. 6 at 4.) Therefore, according to Qureshi, he satisfies the threshold `custody' requirement. (See id. at 4-5.) The instant petition does not challenge the 1993 deportation order, however, and Qureshi invokes it solely to meet the jurisdictional prerequisite of § 2241.[6] (See id.) *499 Instead, Qureshi's petition focuses on the USCIS denial of his application to adjust status, and he contends that the sought-after status adjustment "is not discretionary and must be granted" by the court. (See Doc. 1 ¶ 40 (emphasis in original)). Although Qureshi technically appears to meet the `in custody' requirement for habeas purposes, the court is nonetheless bereft of jurisdiction under § 2241 to review the administrative denial of Qureshi's application to adjust status.[7]
Section 245A of the INA provides a mechanism by which an alien illegally residing in the United States may seek adjustment of his or her status to that of lawful permanent resident provided that certain conditions are met. See 8 U.S.C. § 1255a(a). The statute sets forth a clearand exclusiveprocess of administrative and judicial review in the event one's application is denied. See § 1255a(f)(1) (describing administrative appeals procedure and declaring that "[t]here shall be no administrative or judicial review ... under this section except in accordance with this subsection"). In order to obtain federal court review of an adverse adjustment of status determination, an applicant must appeal the decision along with a final order of deportation. See § 1255(f)(4). Absent accompaniment by an appeal of a final deportation order, federal courts simply lack jurisdiction to entertain an aggrieved applicant's challenge to an adjustment of status decision. Reno v. Catholic Soc. Servs., 509 U.S. 43, 54, 113 S. Ct. 2485, 125 L. Ed. 2d 38 (1993) (explaining that the judicial review procedure mandated by § 1255a is the exclusive mechanism by which courts acquire jurisdiction over applications for adjustment of status).
Qureshi does not seek review of the 1993 order of removal and, therefore, he runs afoul of the above-described statutory requirements. Even if he were to challenge the 1993 order, however, his claims would be inappropriate in this forum,[8]see supra note 6 (explaining that review of a final order of deportation lies exclusively in the circuit courts). At bottom, the instant habeas petition attempts to challenge the discretion of an agency decision; such a challenge is procedurally defective in the § 2241 context and must be dismissed.
III. Conclusion
For the foregoing reasons, the petition (Doc. 1) for writ of habeas corpus will be denied.
An appropriate follows.
*500 ORDER
AND NOW, this 15th day of October, 2009, for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:
1. The petition (Doc. 1) for a writ of habeas corpus is DENIED.
2. The Clerk of Court is directed to CLOSE this case.
NOTES
[1] Alternatively, Qureshi seeks specific performance of an oral contract that was allegedly negotiated in the late 1980s with Justice Department officials. (See Doc. 1 ¶ 42(c)). Qureshi alleges that he was promised lawful permanent resident status in exchange for drug trafficking information, that he fulfilled this "contractual" obligation, but that the government has not performed as promised. (See id. ¶¶ 22-24.) Qureshi provides no support for his contention that a § 2241 petition may be employed by litigants as a contract-enforcement mechanism, and the court rejects this novel attempt to manipulate a statute whose purpose is to rectify unconstitutional restraints on liberty. See Boumediene v. Bush, ___ U.S. ___, 128 S. Ct. 2229, 2266, 171 L. Ed. 2d 41 (2008) (explaining that "the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to `the erroneous application or interpretation' of relevant law" (internal quotations omitted)).
[2] Section 1229c(a)(1) of Title 8 of the United States Code states, "The Attorney General may permit an alien voluntarily to depart the United States at the alien's own expense under this subsection, in lieu of being subject to proceedings under [8 U.S.C. § 1229a] or prior to the completion of such proceedings, if the alien is not deportable under [8 U.S.C. § 1227(a)(2)(A)(iii)] or [8 U.S.C. § 1227(a)(4)(B)]."
[3] An immediate relative petition is available to aliens who can demonstrate in good faith a familial relationship with a United States citizen according to the procedures outlined in 8 U.S.C. § 1154(a).
[4] The Immigration and Naturalization Service was abolished by statute in 2003. See 6 U.S.C. § 291. Congress thereafter created USCIS, which absorbed the INS's functions with respect to adjudicating immigrant visa and naturalization petitions, asylum and refugee applications, and adjudications performed at immigrant service centers. See 6 U.S.C. § 271.
[5] While at least five circuits have held that a final deportation order imposes a restraint which fairly constitutes "custody" for purposes of § 2241, the Third Circuit has yet to squarely address the issue. See Kumarasamy, 453 F.3d at 172-73 (recognizing that "[i]n the immigration context, several [other] circuits have held that an individual subject to a final deportation order issued by the INS or its successor agency is in custody for § 2241 purposes," but declining to opine on the matter). The court is persuaded by the weight of the above-cited authority, and will thus consider a petitioner to be `in custody' when amenable to a final order of deportation.
[6] Were it Qureshi's intent to challenge the 1993 order, his choice of venue would be in error. Section 106(a) of the Real ID Act of 2005 requires aliens contesting a final order of removal to file suit in the appropriate federal courts of appeal. See 8 U.S.C. § 1252(a); see also Kolkevich v. Attorney Gen., 501 F.3d 323, 325-26 (3d Cir.2007). This presents something of a quandary for Qureshi because the statute of limitations governing his petition for review of the 1993 deportation order has long since expired. See Kolkevich, 501 F.3d at 337 (allotting thirty days from passage of the Real ID Act for claimants to file petition for review of pre-Real ID Act removal orders).
[7] In a separate action pending before the court, Qureshi requests judicial review of the status adjustment application under § 702 of the Administrative Procedure Act. (See Qureshi v. Admin. Appeals Office, No. 08-CV-2281, Dkt. No. 11.) The court dismissed Qureshi's complaint in this action pursuant to Federal Rule of Civil Procedure 12(b)(1), (see id.), but a motion for reconsideration remains unresolved, (see id., Dkt. No. 14.)
[8] Qureshi claims that a procedural rejection of his habeas petition is, ipso facto, unconstitutional because such a decision precludes him from acquiring meaningful review of the denial of application to adjust status. According to Qureshi, this effectively suspends the writ of habeas corpus as applied to his circumstances. (See Doc. 6 at 5-11.) The court's rejoinder is twofold: First, there is no constitutional right to judicial review of status adjustment adjudications over and above that which is afforded under § 1255a. See Reno, 509 U.S. at 54, 113 S. Ct. 2485. Second, Qureshi had the opportunity to contest the 1993 order of deportation through both § 2241 and a petition for review, but that opportunity did not extend ad infinitum. See Kolkevich, 501 F.3d at 337 (clarifying the statute of limitations pertinent to challenges to pre-Real ID Act removal orders). That Qureshi's statute of limitations expired does not render the relevant statutory procedure unconstitutional. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3010841/ | Opinions of the United
1998 Decisions States Court of Appeals
for the Third Circuit
3-9-1998
Klein v. Boyd
Precedential or Non-Precedential:
Docket 97-1143,97-1261
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1998
Recommended Citation
"Klein v. Boyd" (1998). 1998 Decisions. Paper 38.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/38
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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Filed March 9, 1998
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 97-1143 & 97-1261
ELYSE S. KLEIN; RICHARD KASTNER;
DORIS KASTNER; WARREN KASTNER,
Appellants in No. 97-1143
v.
WILLIAM BALLANTINE BOYD, III; WILLIAM DISSTON
COLEMAN; THOMAS H. TARANTINO; LAWRENCE G.
STEVENS; GREGORY JAMGOCHIAN; DRINKER, BIDDLE
& REATH; MERCER SECURITIES, INC.; MERCER
SECURITIES, LTD.
ELYSE S. KLEIN; RICHARD KASTNER;
DORIS KASTNER; WARREN KASTNER,
Appellants in No. 97-1261
v.
WILLIAM BALLANTINE BOYD, III; WILLIAM DISSTON
COLEMAN; THOMAS H. TARANTINO; LAWRENCE G.
STEVENS; GREGORY JAMGOCHIAN; DRINKER, BIDDLE
& REATH; MERCER SECURITIES, INC.; MERCER
SECURITIES, LTD.
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 95-cv-05410)
Present: BECKER, Chief Judge, SLOVITER, STAPLETON,
MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD,
ALITO, McKEE, and RENDELL, Circuit Judges,
ORDER
A majority of the active judges having voted for rehearing
en banc in the above appeal, it is ORDERED that the Clerk
of this Court vacate the opinion filed February 12, 1998
and list the above for rehearing en banc at the convenience
of the Court.
By the Court,
/s/ Edward R. Becker
Chief Judge
Dated: March 9, 1998
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1624671/ | 15 So. 3d 582 (2009)
GWIN
v.
STATE.
No. 1D08-3022.
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/73878/ | State of FLORIDA, Plaintiff-Appellant,
v.
SEMINOLE TRIBE OF FLORIDA, James E. Billie, Chairman, Defendants-Appellees.
No. 97-5361.
United States Court of Appeals,
Eleventh Circuit.
July 20, 1999.
Appeal from the United States District Court for the Southern District of Florida. (No. 96-2063-Civ-UUB),
Ursula Ungaro-Benages, Judge.
Before TJOFLAT and EDMONDSON, Circuit Judges, and KRAVITCH, Senior Circuit Judge.
TJOFLAT, Circuit Judge:
This case, which involves alleged class III tribal gaming activity as defined by the Indian Gaming
Regulatory Act ("IGRA"),1 demonstrates the continuing vitality of the venerable maxim that turnabout is fair
play. In 1994, we held that the principle of state sovereign immunity embodied in the Eleventh Amendment
barred the Seminole Tribe of Florida ("the Tribe") from suing the State of Florida under 25 U.S.C. §
2710(d)(7)(A)(i) (1994) for the State's alleged failure to negotiate in good faith regarding the formation of
a Tribal-State compact to regulate class III gaming. See Seminole Tribe v. Florida, 11 F.3d 1016, 1029 (11th
Cir.1994), aff'd, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). In this case, the State has sued the
Tribe and its Chairman, James E. Billie, for both a declaration that the Tribe is conducting unauthorized class
III gaming operations and an injunction preventing such operations in the absence of a Tribal-State compact.
The district court granted the Tribe's motion to dismiss on the ground of tribal sovereign immunity, and
granted Chairman Billie's motion to dismiss for failure to state a claim upon which relief can be granted. We
affirm.
1
Pub.L. No. 100-497, 102 Stat. 2467 (1988) (codified at 25 U.S.C. §§ 2701-21 (1994)). For a general
discussion of the three classes of tribal gaming established by the litigation-spawning juggernaut known
as IGRA, see Seminole Tribe v. Florida, 11 F.3d 1016, 1019 (11th Cir.1994).
I.
The relevant facts may be briefly stated. The State commenced this action on July 29, 1996, and
filed its amended complaint—the pleading at issue here—on September 9. In this complaint, the State alleged2
that the Tribe was operating "electronic or electromechanical facsimiles of games of chance" and that such
operations constituted class III gaming as defined by IGRA. See 25 U.S.C. § 2703(7)(B)(ii), (8) (1994). The
Tribe operated these games despite the absence of a compact between the Tribe and the State regarding the
regulation of class III gaming. The State also alleged that the Tribe planned to construct a new facility on
its lands in order to conduct additional class III gaming.
According to the State's complaint, the operation of such games without a Tribal-State compact
violates both federal and state law. In support of this claim, the State first points to IGRA's rule that "[c]lass
III gaming activities shall be lawful on Indian lands only if such activities are ... conducted in conformance
with a Tribal-State compact entered into by the Indian tribe and the State under [section 2710(d)(3) ] that is
in effect." 25 U.S.C. § 2710(d)(1)(C) (1994). Second, the State contends that the Tribe's games are
"gambling devices" within the meaning of 15 U.S.C. § 1171(a) (1994), and thus that 15 U.S.C. § 1175(a)
(1994) makes it a crime to possess or use them within Indian country. IGRA creates an exception to this
prohibition by providing that section 1175 "shall not apply to any gaming conducted under a Tribal-State
compact that—(A) is entered into ... by a State in which gambling devices are legal, and (B) is in effect." 25
U.S.C. § 2710(d)(6) (1994). The State argues, however, that this exception is inapplicable both because it
has no compact with the Tribe and because the Tribe's games constitute illegal "slot machines" under Florida
law. See Fla. Stat. ch. 849.15-16 (1997) (making it a crime, inter alia, to "possess" or "permit the operation
of" such machines). Finally, the State contends that the Tribe has committed additional federal crimes by
violating this state-law ban on slot machines, which applies to the Tribe's lands for purposes of federal law.
2
We accept the factual allegations of the State's amended complaint as true in reviewing the
defendants' motion to dismiss. See Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1534 (11th
Cir.1994).
2
See 18 U.S.C. § 1166 (1994) (applying state laws regulating or prohibiting gambling to Indian country for
purposes of federal law, defining—by reference to state gambling laws—independent federal offenses
involving gambling in Indian country, and granting the United States exclusive jurisdiction over criminal
prosecutions for violating state gambling laws unless a tribe consents to state jurisdiction); 18 U.S.C. § 1955
(1994) (criminalizing a "gambling business" conducted in violation of state law).
Based on these factual allegations and arguments, the State asked the district court to declare that the
Tribe was conducting unauthorized class III gambling operations in the absence of a Tribal-State compact,
and to enjoin the Tribe from conducting any such operations without a compact.3 On October 10, 1996, the
Tribe and Chairman Billie moved to dismiss the State's amended complaint on the following grounds: tribal
sovereign immunity, lack of standing, and failure to state a claim. The district court granted this motion on
June 15, 1997. The court found that the State's action was barred as to the Tribe because the Tribe had not
expressly agreed to waive its sovereign immunity. The court also concluded that the State had failed to state
a claim against Chairman Billie because there was no implied right of action under IGRA for declaratory or
injunctive relief against unlawful class III gaming. This appeal followed.
II.
3
The State's amended complaint also contained a second count in which it sought a declaration either
that IGRA did not preempt or repeal the State's criminal jurisdiction (derived from former Section 7 of
Public Law 280, 67 Stat. 588, 590 (1953), and Fla. Stat. ch. 285.16 (1997), see generally Seminole Tribe
v. Butterworth, 658 F.2d 310, 312-13 (5th Cir.1981)) to prosecute those engaged in illegal gaming on the
Tribe's lands or that IGRA, if it did have that effect pursuant to 18 U.S.C. § 1166(d) (1994), violated the
Tenth Amendment. Cf. Sycuan Band of Mission Indians v. Roache, 54 F.3d 535, 539-40 (9th Cir.1994)
(finding that section 1166(d) gives the United States exclusive jurisdiction to prosecute violations of state
gambling laws in Indian country under certain circumstances despite the jurisdiction previously granted to
states under Public Law 280).
The defendants moved to dismiss this count of the State's amended complaint on October
10. The district court granted this motion as to the Tribe on the ground of sovereign immunity,
but denied it as to Chairman Billie based on the State's allegation that the Tribe had consented to
State jurisdiction over Indian lands in Florida. After conducting an exhaustive review of the
evidence supporting this allegation, however, the State voluntarily dismissed this count on July
11, 1997.
3
On appeal, the State challenges both the district court's finding of tribal sovereign immunity and its
conclusion that the State failed to state a claim against Chairman Billie. We review the district court's rulings
on these two questions of law de novo.4 See Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians, 177 F.3d
1212, ----, ---- (11th Cir.1999) [slip op. 2751, 2764]; Womack v. Runyon, 147 F.3d 1298, 1299 (11th
Cir.1998).
A.
"Indian tribes have long been recognized as possessing the common-law immunity from suit
traditionally enjoyed by sovereign powers." Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670,
1677, 56 L.Ed.2d 106 (1978). A suit against an Indian tribe is therefore barred unless the tribe clearly waived
its immunity or Congress expressly abrogated that immunity by authorizing the suit. See Kiowa Tribe v.
Manufacturing Techs., Inc., 523 U.S. 751, 118 S.Ct. 1700, 1702, 140 L.Ed.2d 981 (1998); Oklahoma Tax
Comm'n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509, 111 S.Ct. 905, 909, 112 L.Ed.2d 1112
(1991); Florida Paraplegic Ass'n v. Miccosukee Tribe of Indians, 166 F.3d 1126, 1130-31 (11th Cir.1999).
As we read its briefs on appeal, the State offers three theories to support its argument that the Tribe's
sovereign immunity does not bar this suit: (1) Congress abrogated tribal immunity from state suits that seek
4
In light of our conclusion in part II.B., infra, that the State has failed to state a claim against
Chairman Billie, it might be argued that the State has likewise failed to state a claim against the Tribe and
therefore that it is unnecessary for us to determine whether the Tribe's sovereign immunity bars this suit.
This argument, however, ignores the fundamentally jurisdictional nature of a claim of sovereign
immunity. See, e.g., United States v. County of Cook, Ill., 167 F.3d 381, 390 (7th Cir.1999) (noting the
Supreme Court's "thoroughgoing equation of sovereign immunity to a jurisdictional shortcoming");
Fletcher v. United States, 116 F.3d 1315, 1326 (10th Cir.1997) (holding that the Osage Tribal Council
and its members "properly and adequately challenged federal jurisdiction on the ground of tribal
sovereign immunity"); Kreig v. Prairie Island Dakota Sioux (In re Prairie Island Dakota Sioux ), 21 F.3d
302, 305 (8th Cir.1994) (finding that tribal "sovereign immunity is a jurisdictional consideration separate
from subject matter jurisdiction"); Maynard v. Narragansett Indian Tribe, 984 F.2d 14, 16 (1st Cir.1993)
(holding that tribal immunity was not waived or abrogated, and thus that district court correctly dismissed
action for lack of jurisdiction); Pan Am. Co. v. Sycuan Band of Mission Indians, 884 F.2d 416, 418 (9th
Cir.1989). Because of its jurisdictional nature, we must consider the Tribe's claim of sovereign immunity
before reaching the issue of failure to state a claim. Cf. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-
62, 98 S.Ct. 1670, 1677-79, 56 L.Ed.2d 106 (1978) (deciding first that suit against tribe was barred by
sovereign immunity, and then finding that plaintiffs had no implied right of action against tribal official).
4
declaratory or injunctive relief for alleged tribal violations of IGRA; (2) the Tribe, by electing to engage in
gaming under IGRA, waived its immunity from a suit to require compliance with the statutory conditions
precedent to class III gaming; and (3) tribal immunity does not necessarily extend to actions seeking
prospective equitable relief. Although some courts have muddled the distinctions among these theories,5 they
are actually quite different and will be considered separately here.
1.
We have previously held that "Congress abrogates tribal immunity only where the definitive
language of the statute itself states an intent either to abolish Indian tribes' common law immunity or to
subject tribes to suit under the act." Florida Paraplegic Ass'n, 166 F.3d at 1131. In IGRA, Congress
abrogated tribal immunity by authorizing a state to sue a tribe in district court "to enjoin a class III gaming
activity located on Indian lands and conducted in violation of any Tribal-State compact entered into under
[section 2710(d)(3) ] that is in effect." 25 U.S.C. § 2710(d)(7)(A)(ii) (1994). The State, citing Mescalero
Apache Tribe v. New Mexico, 131 F.3d 1379, 1385-86 (10th Cir.1997), argues that this provision of IGRA
evinces a broad congressional intent to abrogate tribal immunity from any state suit that seeks declaratory or
injunctive relief for an alleged tribal violation of IGRA. We disagree.
As an initial matter, we find that Mescalero provides no support for the State's argument. The
Mescalero panel, in discussing section 2710(d)(7)(A)(ii), claimed that a majority of courts agree that "IGRA
5
See, e.g., Mescalero Apache Tribe v. New Mexico, 131 F.3d 1379, 1385-86 (10th Cir.1997) (citing
cases regarding waiver of tribal immunity as support for proposition that Congress abrogated tribal
immunity in IGRA); Ross v. Flandreau Santee Sioux Tribe, 809 F.Supp. 738, 744-45 (D.S.D.1992)
(conflating issues of whether tribe waived sovereign immunity by engaging in gaming under IGRA and
whether tribe's immunity extended to action seeking prospective equitable relief).
Some of this confusion may stem from the Santa Clara Pueblo decision, in which the
Supreme Court considered whether a particular statutory provision could "be read as a general
waiver of the tribe's sovereign immunity" by Congress. 436 U.S. at 59, 98 S.Ct. at 1677
(emphasis added). We believe that it is most conducive to reasoned analysis to have separate
terms for a congressional deprivation of tribal sovereign immunity as distinguished from a
voluntary tribal relinquishment thereof. In this opinion, therefore, we refer to the former as a
congressional abrogation of immunity and to the latter as a tribal waiver of immunity.
5
[abrogated6] tribal sovereign immunity in the narrow category of cases where compliance with IGRA's
provisions is at issue and where only declaratory or injunctive relief is sought." 131 F.3d at 1385. In
actuality, however, the cases that the panel cited in support of its claim addressed an entirely different matter,
to wit: whether a tribe voluntarily waives its own sovereign immunity by engaging in gaming under IGRA.
See infra part II.A.2. (discussing tribal waiver of immunity). In light of this absence of supporting authority,
we find the Mescalero panel's claim difficult to credit.
Moreover, we conclude that the panel's claim—and thus the State's argument in favor of a broad
reading of section 2710(d)(7)(A)(ii)—directly contradicts two well-established principles of statutory
construction: that Congress may abrogate a sovereign's immunity only by using statutory language that
makes its intention unmistakably clear,7 and that ambiguities in federal laws implicating Indian rights must
be resolved in the Indians' favor. See Florida Paraplegic Ass'n, 166 F.3d at 1131 (citing Atascadero State
Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171 (1985); Montana v. Blackfeet
Tribe of Indians, 471 U.S. 759, 766, 105 S.Ct. 2399, 2403, 85 L.Ed.2d 753 (1985)). When section
2710(d)(7)(A)(ii) of IGRA is read in light of these principles, it becomes clear that Congress abrogated tribal
immunity only in the narrow circumstance in which a tribe conducts class III gaming in violation of an
existing Tribal-State compact. Cf. Cabazon Band of Mission Indians v. Wilson, 124 F.3d 1050, 1059-60 (9th
Cir.1997) (concluding that section 2710(d)(7)(A)(ii) did not authorize state's suit to enjoin tribal class III
gaming that existing Tribal-State compact did not prohibit). Because the State and the Tribe have not entered
into a compact in this case, we hold that Congress has not abrogated the Tribe's immunity from the State's
suit.
2.
6
The Mescalero panel actually used the word "waived." We substitute the word "abrogated" for the
reasons discussed in note 5, supra.
7
Citations to legislative history or inferences from general statutory language are insufficient bases for
a finding of congressional abrogation. See Florida Paraplegic Ass'n, 166 F.3d at 1131.
6
The State next argues that the Tribe, by electing to engage in gaming subject to regulation under
IGRA, waived its own immunity from this suit to compel compliance with IGRA's requirement that the Tribe
enter into a Tribal-State compact before conducting class III gaming. See 25 U.S.C. § 2710(d)(1)(C). There
is some support for this argument in the case law. In Ross v. Flandreau Santee Sioux Tribe, 809 F.Supp. 738,
745 (D.S.D.1992), for example, the court held that "[e]ngaging in gaming pursuant to the IGRA constitutes
an express waiver of sovereign immunity on the issue of compliance with the IGRA." See also Maxam v.
Lower Sioux Indian Community, 829 F.Supp. 277, 281 (D.Minn.1993) ("The Community's decision to
conduct class II gaming pursuant to the IGRA constitutes a clear waiver of sovereign immunity for the
purpose of enforcement of the requirements imposed as a statutory condition of permission to engage in such
activities."). But see Davids v. Coyhis, 869 F.Supp. 1401, 1407-09 (E.D.Wis.1994) (rejecting Ross and
Maxam as contrary to the Supreme Court's decision in Santa Clara Pueblo ).
The district court in this case, however, concluded that Ross and Maxam were wrongly decided. We
agree. The Supreme Court has made it plain that waivers of tribal sovereign immunity cannot be implied on
the basis of a tribe's actions, but must be unequivocally expressed.8 The State's argument that the Tribe's
gaming activities constitute a waiver of sovereign immunity is patently inconsistent with this rule. Although
the Ross court claimed that such gaming activities could constitute an express waiver, we find this claim to
be no more than a misuse of the word "express." See Black's Law Dictionary 580 (6th ed.1990) (defining
8
See Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. at 1677 (noting that waivers of sovereign immunity
"cannot be implied but must be unequivocally expressed" (internal quotation marks omitted)); see also
Oklahoma Tax Comm'n, 498 U.S. at 509-510, 111 S.Ct. at 909 (following United States v. United States
Fidelity & Guaranty Co., 309 U.S. 506, 511-12, 60 S.Ct. 653, 655-56, 84 L.Ed. 894 (1940), in concluding
that tribe did not waive sovereign immunity from counterclaim by filing action for injunctive relief);
Puyallup Tribe, Inc. v. Department of Game, 433 U.S. 165, 173, 97 S.Ct. 2616, 2621, 53 L.Ed.2d 667
(1977) (concluding that "the mere fact that the Tribe has appeared on behalf of [individual tribal members
whom the State of Washington sued in its courts] does not effect a waiver of sovereign immunity for the
Tribe itself"); Sac & Fox Nation v. Hanson, 47 F.3d 1061, 1063 (10th Cir.1995) (finding that "a waiver
of sovereign immunity cannot be inferred from the Nation's engagement in commercial activity");
American Indian Agric. Credit Consortium, Inc. v. Standing Rock Sioux Tribe, 780 F.2d 1374, 1378 (8th
Cir.1985) (rejecting conclusion that tribal sovereign immunity "need not be expressly waived, but can be
waived by implication, in contract actions").
7
express as "[m]anifested by direct and appropriate language, as distinguished from that which is inferred from
conduct."). We hold, therefore, that the Tribe did not expressly and unequivocally waive its immunity from
this suit by electing to engage in gaming under IGRA.
We are aware of the State's concern, echoed by the court in Maxam, 829 F.Supp. at 281, that this
holding will effectively nullify its rights under IGRA by leaving it with no forum in which it can prevent the
Tribe from violating IGRA with impunity. Even if we were to assume arguendo that the State is correct, it
is far from clear that "tribal [sovereign] immunity [must give way to] federal jurisdiction when no other forum
is available for the resolution of claims."9 Fluent v. Salamanca Indian Lease Auth., 928 F.2d 542, 547 (2d
Cir.1991) (rejecting this proposition); accord Ute Distrib. Corp. v. Ute Indian Tribe, 149 F.3d 1260, 1266
n. 8 (10th Cir.1998) ("The proposition that tribal immunity is waived if a party is otherwise left without a
judicial remedy is inconsistent with the reasoning of Santa Clara Pueblo."); Makah Indian Tribe v. Verity,
910 F.2d 555, 560 (9th Cir.1990) ("Sovereign immunity may leave a party with no forum for its claims.");
cf. Florida Paraplegic Ass'n, 166 F.3d at 1134 (implying that lack of forum in which to pursue claim has no
bearing on tribal sovereign immunity analysis). We need not decide this question here, however, because it
is clear that other fora do exist in which the State may press its claims. For example, the State can request
that the United States prosecute the Tribe or its members for violating applicable state or federal gambling
laws.10 See supra part I (listing the various criminal laws allegedly violated by the Tribe). The State can also
9
In part, the Maxam court seems to have based its conclusion that tribal immunity must give way in
such circumstances on the Supreme Court's opinion in Oklahoma Tax Commission, which it cites for the
proposition that "tribal sovereign immunity does not excuse tribes from all legal obligations." Maxam,
829 F.Supp. at 281 (citing Oklahoma Tax Comm'n, 498 U.S. at 512-15, 111 S.Ct. at 911-12). This
reading of Oklahoma Tax Commission is overly broad. In that case, the Supreme Court stated merely that
the doctrine of tribal sovereign immunity "does not excuse a tribe from all obligations to assist in the
collection of validly imposed state sales taxes." 498 U.S. at 512, 111 S.Ct. at 911. "To say [as the Court
did in Oklahoma Tax Commission—that] substantive state laws apply to off-reservation conduct,
however, is not to say that a tribe no longer enjoys immunity from suit." Kiowa Tribe, 523 U.S. at ----,
118 S.Ct. at 1703.
10
We express no opinion regarding the merits of such a prosecution or any possible defenses thereto.
We note, however, that the United States has opted (at least initially) to forgo prosecution in favor of
8
ask the National Indian Gaming Commission ("NIGC") to fine the Tribe or to close its gaming facilities. See
25 U.S.C. § 2713 (1994).
3.
Finally, the State seeks to avoid the bar of tribal sovereign immunity by arguing that the Tribe's
immunity does not necessarily extend to this action for prospective equitable relief. This argument is rooted
in the following comment from Justice Stevens' concurring opinion in Oklahoma Tax Commission: "the
Court today recognizes that a tribe's sovereign immunity from actions seeking money damages does not
necessarily extend to actions seeking [prospective] equitable relief." 498 U.S. at 516, 111 S.Ct. at 913
(Stevens, J., concurring). Some of the above-mentioned courts have seized upon Justice Stevens' comment
to support their conclusion that tribal sovereign immunity does not bar a suit to require tribal compliance with
the statutory conditions precedent to gaming under IGRA. See Maxam, 829 F.Supp. at 281-82; Ross, 809
F.Supp. at 744-45.
We conclude that Justice Stevens' comment provides no solace to the State, however, because it is
not the law. In Santa Clara Pueblo, 436 U.S. at 58-59, 98 S.Ct. at 1677, decided well before Oklahoma Tax
bringing a civil enforcement action to enjoin the Tribe's allegedly unauthorized gaming activities. The
Tribe moved to dismiss the Government's complaint for failure to state a claim, arguing that the
Government had no authority to seek civil injunctive relief. The district court held that the Government
did have such authority under Florida law as applied to Indian country by 18 U.S.C. § 1166(a). See
United States v. Seminole Tribe, 45 F.Supp.2d 1330 (M.D.Fla.1999) (denying motion to dismiss); Fla.
Stat. ch. 849.20-21 (1997); cf. infra note 13 (discussing whether section 1166(a) incorporates Florida law
in this manner). In so holding, the court seemed to be cognizant of the rule that equity will not enjoin the
commission of a crime, which is a corollary of the more general principle that injunctive relief is
unavailable when there is an adequate remedy at law. See, e.g., Weaver v. Florida Power & Light Co.,
172 F.3d 771, 773 (11th Cir.1999) (stating general principle); United States v. Washington Post Co., 446
F.2d 1322, 1324 (D.C.Cir.1971); United States v. Bay Mills Indian Community, 692 F.Supp. 777, 779-80
(W.D.Mich.1988), vacated on other grounds, 727 F.Supp. 1110 (W.D.Mich.1989); 11A Charles Alan
Wright et al., Federal Practice & Procedure § 2942, at 70-71 (2d ed.1995). The court apparently
concluded that this rule was inapplicable in light of its holding that an action for injunctive relief was
specifically authorized by applicable Florida law. See, e.g., United States v. Santee Sioux Tribe, 135 F.3d
558, 565 (8th Cir.), cert. denied, --- U.S. ----, 119 S.Ct. 48, 142 L.Ed.2d 37 (1998) (recognizing exception
to rule if statute expressly grants court power to enjoin crime); LeBlanc-Sternberg v. Fletcher, 67 F.3d
412, 434 (2d Cir.1995); United States v. Buttorff, 761 F.2d 1056, 1063 (5th Cir.1985); United States v.
Jalas, 409 F.2d 358, 360 (7th Cir.1969). We express no opinion on the correctness of either this
conclusion or the district court's holding.
9
Commission, the Court unequivocally upheld a tribe's immunity from a suit that sought only declaratory and
prospective injunctive relief. In our view, this aspect of Santa Clara Pueblo remains the law today. Despite
Justice Stevens' claim to the contrary (which was not joined by any other member of the Court), the
Oklahoma Tax Commission majority announced that it was "not disposed to modify the long-established
principle of tribal sovereign immunity."11 498 U.S. at 510, 111 S.Ct. at 910. Moreover, the Court has since
reaffirmed the doctrine of tribal sovereign immunity—over Justice Stevens' dissent—in the strongest of terms.
See Kiowa Tribe, 523 U.S. at ----, 118 S.Ct. at 1702 ("As a matter of federal law, an Indian tribe is subject
to suit only where Congress has authorized the suit or the tribe has waived its immunity." (emphasis added)).
We discern two very good reasons for the Court's reluctance to sanction modifications of tribal
sovereign immunity doctrine such as the one advocated by Justice Stevens: lack of precedent and deference
to Congress. As to the first reason, we are aware of Justice Stevens' view that Edelman v. Jordan, 415 U.S.
651, 664-65, 94 S.Ct. 1347, 1356-57, 39 L.Ed.2d 662 (1974), provides analogical support for his conception
of tribal sovereign immunity. See Oklahoma Tax Comm'n, 498 U.S. at 515, 111 S.Ct. at 912 (Stevens, J.,
concurring). We respectfully disagree. Edelman merely discusses the type of relief that may be obtained in
a suit against an individual officer of a sovereign; it says nothing whatsoever that could be construed to
support the proposition that an otherwiseimmune sovereign may itself be sued if only prospective equitable
relief is sought. Cf. Seminole Tribe, 517 U.S. at 58, 116 S.Ct. at 1124 ("[W]e have often made it clear that
the relief sought by a plaintiff suing a State is irrelevant to the question whether the suit is barred by the
[principle of sovereign immunity embodied in the] Eleventh Amendment."). Regarding the issue of
deference, we note that Congress has been consistent in its approval of the Supreme Court's tribal sovereign
immunity doctrine and has acted against the background of this doctrine in order to restrict tribal immunity
11
In addition, as the Tenth Circuit has noted, the majority opinion implicitly rejected Justice Stevens'
position by suggesting certain alternative remedies—other than a suit against the Tribe—that Oklahoma
could pursue in order to collect its sales tax. See Oklahoma Tax Comm'n, 498 U.S. at 514, 111 S.Ct. at
912; Citizen Band Potawatomi Indian Tribe v. Oklahoma Tax Comm'n, 969 F.2d 943, 948 n. 5 (10th
Cir.1992).
10
in certain circumstances. See Kiowa Tribe, 523 U.S. at ----, 118 S.Ct. at 1705; Oklahoma Tax Comm'n, 498
U.S. at 510, 111 S.Ct. at 910. In addition, the Court has stated that "Congress is in a position to weigh and
accommodate the competing policy concerns and reliance interests" associated with any decision to alter the
limits of tribal immunity. Kiowa Tribe, 523 U.S. at ----, 118 S.Ct. at 1705. It is little wonder, therefore, that
the Court has chosen to defer to Congress rather than to revisit its own tribal sovereign immunity
jurisprudence. See id.
In light of these considerations, we decline to modify the doctrine of tribal sovereign immunity absent
an express command to the contrary from either Congress or a majority of the Supreme Court. Accordingly,
we reject the State's argument that the Tribe's immunity does not necessarily extend to this action for
prospective equitable relief. The district court's holding that sovereign immunity bars the State's suit against
the Tribe is affirmed.
B.
We now turn to the district court's holding that the State failed to state a claim against Chairman
Billie12 because there is no implied right of action13 under IGRA for declaratory or injunctive relief against
12
The State has alleged that Chairman Billie "is responsible for the conduct of gambling activities by
the Tribe pursuant to IGRA." Chairman Billie has not claimed that the Tribe's sovereign immunity shields
him from this suit. Cf. Tamiami Partners, Ltd., 177 F.3d at ---- [slip op. at 2765] ("[T]ribal officers are
protected by tribal sovereign immunity when they act in their official capacity and within the scope of
their authority; however, they are subject to suit under the doctrine of Ex parte Young when they act
beyond their authority.").
13
It is unclear whether IGRA could properly be viewed as giving the State an express right to sue
Chairman Billie for injunctive relief. Because there is no compact between the State and the Tribe, the
cause of action expressly created by 25 U.S.C. § 2710(d)(7)(A)(ii) is plainly not available to the State.
See supra part II.A.1. We note, however, that Florida law expressly provides that an action may be
brought in state court to enjoin the continuation of a "common nuisance," which term is defined to include
the "slot machines" allegedly operated by the Tribe. See Fla. Stat. ch. 849.20-21 (1997). In its amended
complaint, the State contended that the district court could entertain an action for injunctive relief
pursuant to this provision "as incorporated into federal law by 18 U.S.C. § 1166."
Section 1166, which was enacted as part of IGRA, provides in pertinent part that, "for
purposes of Federal law, all State laws pertaining to the licensing, regulation, or prohibition of
gambling, including but not limited to criminal sanctions applicable thereto, shall apply in Indian
11
class III gaming that is being unlawfully conducted without a Tribal-State compact. In Cort v. Ash, 422 U.S.
66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Supreme Court set forth four factors that are relevant in
determining whether a private right of action is implicit in a statute:
First, is the plaintiff "one of the class for whose especial benefit the statute was enacted,"—that is,
does the statute create a federal right in favor of the plaintiff? Second, is there any indication of
legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it
consistent with the underlying purposes of the legislative scheme to imply such a remedy for the
plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area
basically the concern of the States, so that it would be inappropriate to infer a cause of action based
solely on federal law?
country in the same manner and to the same extent as such laws apply elsewhere in the State." 18
U.S.C. § 1166(a) (emphasis added). An examination of cases that have addressed this provision
engenders some doubt about whether it would permit a state to bring an action in federal court
seeking state-law injunctive relief against a tribe for violating state gambling laws. Compare
United States v. Santee Sioux Tribe, 135 F.3d 558, 563-65 (8th Cir.), cert. denied, --- U.S. ----,
119 S.Ct. 48, 142 L.Ed.2d 37 (1998) (concluding that U.S. Attorney could obtain injunction
pursuant to section 1166 to enforce order of National Indian Gaming Commission closing tribal
casino where state law permitted action for injunctive relief against gambling operation that
constituted public nuisance), and United States v. Seminole Tribe, 45 F.Supp.2d 1330
(M.D.Fla.1999) (see supra note 10), with United States v. Spokane Tribe of Indians, 139 F.3d
1297, 1298-1302 & n. 7 (9th Cir.1998) (vacating injunction against tribal gaming, which district
court had entered pursuant to "IGRA and its incorporation of state law," on ground that portions
of IGRA remaining after Supreme Court's Seminole Tribe decision could not support injunction
in certain circumstances), United States v. E.C. Invs., Inc., 77 F.3d 327, 330 (9th Cir.1996)
(narrowly interpreting phrase "for purposes of Federal law" in section 1166(a) as reference to
other federal laws such as 18 U.S.C. § 1955), United States v. Santa Ynez Band of Chumash
Mission Indians, 983 F.Supp. 1317, 1322-23, 1325 (C.D.Cal.1997) (discussing structure of
section 1166, suggesting (in light of legislative history) that section 1166(a) provides no basis for
civil enforcement of state gambling laws by any entity, and reading Ninth Circuit precedent as
foreclosing such enforcement by states), and Sycuan Band of Mission Indians v. Roache, 788
F.Supp. 1498, 1506-07 (S.D.Cal.1992), aff'd, 54 F.3d 535 (9th Cir.1994) (stating that Congress,
in section 1166(a), federalized state gaming laws for purposes of regulating class III gaming but
that states lack jurisdiction to enforce these laws in Indian country unless a Tribal-State compact
provides otherwise).
As interesting as this question may be, its resolution will have to wait. Although the
State referred to section 1166(a) in its complaint, the State has not subsequently argued—either in
opposing the Tribe's motion to dismiss or on appeal—that section 1166(a) provides it with an
express cause of action against Chairman Billie. We therefore decline to consider such an
argument here. See Montgomery v. Noga, 168 F.3d 1282, 1297 n. 24 (11th Cir.1999); Adler v.
Duval Co. Sch. Bd., 112 F.3d 1475, 1480-81 (11th Cir.1997).
12
Id. at 78, 95 S.Ct. at 2088 (citations omitted). The central inquiry under this framework is whether Congress
intended to create the asserted private right of action. See Touche Ross & Co. v. Redington, 442 U.S. 560,
568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979); Florida Dep't of Bus. Regulation v. Zachy's Wine & Liquor,
Inc., 125 F.3d 1399, 1403 (11th Cir.1997). Thus, when an examination of one or more of the Cort factors
"unequivocally reveals congressional intent[,] there is no need for us to trudge through all four of the factors."
Liberty Nat'l Ins. Holding Co. v. Charter Co., 734 F.2d 545, 558 (11th Cir.1984) (internal quotation marks
omitted) (quoting Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 388, 102 S.Ct. 1825, 1844,
72 L.Ed.2d 182 (1982)); see also Noe v. Metropolitan Atlanta Rapid Transit Auth., 644 F.2d 434, 436-37
(5th Cir. Unit B May 1981).14
The first Cort factor is a threshold question that must be "answered by looking to the language of
the statute itself." Cannon v. University of Chicago, 441 U.S. 677, 689, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560
(1979); see also Noe, 644 F.2d at 437. Most of the statutes that the Tribe has allegedly violated in this case
are criminal in nature, see supra part I; the State does not contend that these statutes implicitly provide it with
a right of action against the Tribe. Cf. Cannon, 441 U.S. at 690-93 & n. 13, 99 S.Ct. at 1954-55 & n. 13
(distinguishing criminal statutes and other statutes that impose duties for the benefit of the general public
from statutes that explicitly confer rights directly on identified classes of persons, and noting the Supreme
Court's reluctance to imply causes of action under the former type of statute); Taylor v. Citizens Fed. Sav.
& Loan Ass'n, 846 F.2d 1320, 1322 (11th Cir.1988) (same). The sole non-criminal statutory violation
ascribed to the Tribe is a violation of IGRA's rule that "[c]lass III gaming activities shall be lawful on Indian
lands only if such activities are ... conducted in conformance with a Tribal-State compact ... that is in effect."
25 U.S.C. § 2710(d)(1)(C). We acknowledge that the language of this rule, if considered in isolation, could
14
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as
binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
13
be viewed as granting states a qualified15 federal right to be free from class III tribal gaming activities within
their borders in the absence of a compact regulating such activities. Cf. Seminole Tribe, 517 U.S. at 58, 116
S.Ct. at 1124 (noting that IGRA "grants the States a power that they would not otherwise have, viz., some
measure of [civil/regulatory] authority over gaming on Indian lands"). Nevertheless, we conclude that the
legislative history and statutory scheme of IGRA—the second and third Cort factors—unequivocally
demonstrate that Congress did not intend to vindicate any such right by creating a private right of action that
would allow states to obtain injunctive relief against uncompacted class III tribal gaming. See Noe, 644 F.2d
at 437-38 (stating that the first Cort factor is a necessary, but not a sufficient, basis for finding an implied
right of action, and noting that a statement to the contrary in Cannon is no longer the law).
The legislative history of IGRA indicates that Congress, in developing a comprehensive approach
to the controversial subject of regulating tribal gaming, struck a careful balance among federal, state, and
tribal interests. See S.Rep. No. 100-446, at 5-6 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3074-76. A
central feature of this balance is IGRA's thoroughgoing limits on the application of state laws and the
extension of state jurisdiction to tribal lands. See id. The legislative history reveals that Congress constructed
limits on state power with particular care in the area of class III gaming. The Senate Report states that, in
adopting the position that class III gaming may not be conducted on tribal lands without a Tribal-State
compact, "the [Select Committee on Indian Affairs] has carefully considered the law enforcement concerns
of tribal and State governments, as well as those of the Federal Government, and the need to fashion a means
by which differing public policies of these respective governmental entities can be accommodated and
reconciled." Id. at 6, 1988 U.S.C.C.A.N. at 3076; see also id. at 13, 1988 U.S.C.C.A.N. at 3083 (listing
objectives of state and tribal governments regarding the conduct of class III gaming). After balancing these
concerns, "[t]he Committee concluded that the compact process is a viable mechanism for setting various
15
See 25 U.S.C. § 2710(d)(3)(A) (1994) ("Upon receiving [a tribal request to negotiate a compact
governing the conduct of gaming activities], the State shall negotiate with the Indian tribe in good faith to
enter into such a compact.").
14
matters between [states and tribes as] equal sovereigns." Id. With regard to this process, the Committee
recognized "the need to provide some incentive for States to negotiate with tribes in good faith because tribes
will be unable to enter into such gaming unless a compact is in place." Id. Although it appreciated the
difficulty of finding such an incentive, the Committee unequivocally stated its "intent that the compact
requirement for class III not be used as a justification by a State for excluding Indian tribes from such
gaming." Id. We would surely frustrate this intent—and upset the carefully-struck congressional balance of
federal, state, and tribal interests and objectives16—by recognizing an implied right of action under IGRA in
which a state, on its own initiative, could sue to enjoin a tribe from conducting class III gaming without a
compact. This we decline to do.
The statutory scheme of IGRA provides additional evidence of congressional intent that strongly
supports our decision not to find an implied right of action. It is a well-established principle of statutory
construction that "when legislation expressly provides a particular remedy or remedies, courts should not
expand the coverage of the statute to subsume other remedies." Tamiami Partners, Ltd. v. Miccosukee Tribe
of Indians, 63 F.3d 1030, 1049 (11th Cir.1995) (quoting National R.R. Passenger Corp. v. National Ass'n of
R.R. Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646 (1974)). In IGRA, Congress provided
a multitude of express remedies. See, e.g., 25 U.S.C. § 2710(d)(7)(A)(ii) (authorizing state or tribal suit to
enjoin class III gaming conducted in violation of compact); 25 U.S.C. § 2710(d)(7)(A)(iii) (1994)
(authorizing suit by Secretary of Interior to enforce procedures for conducting class III gaming); 25 U.S.C.
§ 2711(d) (1994) (authorizing tribal suit to compel Chairman of NIGC either to approve or to disapprove
management contract); 25 U.S.C. § 2713(a)(2), (b)(2) (1994) (creating right to hearing before NIGC
16
See Santa Clara Pueblo, 436 U.S. at 64, 98 S.Ct. at 1680 ("Where Congress seeks to promote
[multiple] objectives in a single statute, courts must be more than usually hesitant to infer from its silence
a cause of action that, while serving one legislative purpose, will disserve [another]."); S.Rep. No. 100-
446, at 6, 1988 U.S.C.C.A.N. at 3076 ("[IGRA] is intended to expressly preempt the field in the
governance of gaming activities on Indian lands. Consequently, Federal courts should not balance
competing Federal, State, and tribal interests to determine the extent to which various gaming activities
are allowed.").
15
regarding fine imposed or temporary closure ordered by Chairman); 25 U.S.C. § 2713(c), 2714 (1994)
(authorizing appeal to district court of NIGC fines, permanent closure orders, and certain other decisions).
As discussed in part II.A.2., supra, two such remedies are particularly relevant to the problem of uncompacted
class III tribal gaming. Under 25 U.S.C. § 2713, the NIGC can fine a tribe or close a tribal gaming facility
if it finds that the tribe is conducting class III gaming without a compact in violation of 25 U.S.C. §
2710(d)(1)(C). In addition, under 25 U.S.C. § 2710(d)(6), Congress declined to shield those who engage in
class III tribal gaming without a compact from federal criminal prosecution pursuant to statutes such as 15
U.S.C. § 1175(a).
The existence of these various express remedies is a clear signal that we should not read into IGRA
the implied right of action asserted by the State. See Touche Ross & Co., 442 U.S. at 572, 99 S.Ct. at 2487
("Obviously, then, when Congress wished to provide a private ... remedy, it knew how to do so and did so
expressly."); Tamiami, 63 F.3d at 1049. Moreover, it is important to recognize that such an implied right
of action would wreak havoc upon the existing remedial scheme of IGRA. For example, as noted in part
II.A.1. above, IGRA expressly authorizes a state to sue a tribe in district court "to enjoin a class III gaming
activity [1] located on Indian lands and [2] conducted in violation of any Tribal-State compact ... that is in
effect." 25 U.S.C. § 2510(d)(7)(A)(ii). Giving a state an implied right of action against class III tribal gaming
conducted in the absence of a compact would be tantamount to deleting the second requirement that must be
met in order for the state to pursue this express right of action.17 If Congress had wanted to delete this portion
of the statute, it could easily have done so. We will not usurp the legislative role by deleting it ourselves,
17
It could be argued, of course, that deleting the second requirement would do more than create the
right of action sought by the State here. Theoretically, such a deletion would also allow a state to sue for
injunctive relief against class III tribal gaming conducted in conformity with a compact. It seems quite
unlikely, however, that any such suit would ever be brought: not only would a state have little incentive
to sue a tribe on this ground, but the tribe could presumably use the compact as a defense.
16
particularly when doing so would undermine one of the few remaining incentives for a state to negotiate a
compact with a tribe.18
Recognizing an implied right of action would also have a detrimental impact on the criminal
remedial scheme which IGRA contemplates that the United States will use to combat illegal tribal gaming.
To illustrate this problem, assume that an official of a tribe that has no compact operates class III games that
constitute "gambling devices" within the meaning of 15 U.S.C. § 1171(a). This official could be prosecuted
by the United States for violating 15 U.S.C. § 1175.19 If the state in which the gaming occurred could beat
the prosecutor to the punch by persuading a court to enter an injunction against any further operation of the
games, two negative consequences would result. First, the official would be deprived of his
congressionally-recognized right to invoke the safeguards of criminal procedure when his gaming activities
are challenged in court. Second, the discretion of the United States not to prosecute the official would be
severely restricted in light of the court's recognition that improper gaming had occurred. It is consequences
such as these that underpin the traditional rule that equity will not enjoin the commission of a crime. See 11A
Charles Alan Wright et al., Federal Practice & Procedure § 2942, at 70-71 (2d ed.1995); supra note 10
(discussing this rule). We will not depart from this rule by creating an implied right of action under which
a state can attempt to force the hand of a federal prosecutor in this manner.
18
In Seminole Tribe, 517 U.S. at 55-73, 116 S.Ct. at 1123-1132, the Supreme Court struck down a
provision of IGRA that would have allowed a tribe to sue a state for failing to negotiate in good faith
regarding the formation of a compact. This tribal suit provision was IGRA's primary incentive for states
to negotiate with tribes. In this case, by effectuating Congress' intent to permit a state to sue a tribe for a
class III gaming violation only where a compact is present, we preserve at least some incentive for states
to enter into compact negotiations. The tribes also have an incentive to participate in such negotiations
because they face possible NIGC action or federal prosecution if they engage in uncompacted class III
gaming.
19
If we alter the above illustration by assuming that the official could be prosecuted under either 18
U.S.C. § 1166(b) or 18 U.S.C. § 1955 for operating the uncompacted class III games, the result is equally
troubling. Cf. supra part I (discussing the various criminal statutes allegedly violated by the Tribe in this
case).
17
In light of our conclusion that the second and third Cort factors unequivocally counsel against
implying the private right of action sought by the State, we do not consider the fourth factor here. We hold,
therefore, that the State has no implied right of action under IGRA for declaratory or injunctive relief against
class III tribal gaming that is being unlawfully conducted without a Tribal-State compact.
III.
For the foregoing reasons, the order of the district court granting the defendants' motion to dismiss
is AFFIRMED.
18 | 01-03-2023 | 04-26-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1555244/ | 36 So.3d 743 (2010)
Judy RUSSELL, Appellant,
v.
ORANGE COUNTY PUBLIC SCHOOLS TRANSPORTATION and United Self-Insured, Appellees.
No. 1D09-3974.
District Court of Appeal of Florida, First District.
April 20, 2010.
Rehearing Denied June 2, 2010.
*744 Bill McCabe, Longwood, and Thomas A. Vaughan and Carrie L. Hixson, Orlando, for Appellant.
Nancy A. Blastic of Moore, Peterson & Zeitler, P.A., Orlando, for Appellees.
WOLF, J.
Claimant seeks review of an order denying her requested workers' compensation benefits. While claimant raises several issues, only two merit discussion. Specifically, we reverse because we find the Judge of Compensation Claims (JCC) erred in excluding the medical opinion of an orthopedic physician, Dr. Richard Smith, who was at one time claimant's authorized provider. Further, as a result of this erroneous exclusion, we likewise find the JCC erred in declining to order an expert medical advisor's opinion (EMA) based on the disagreement of two admissible medical opinions as required by section 440.13(9)(c), Florida Statutes (Supp.1998).
Prior to the benefits hearing, claimant requested an EMA, citing a disagreement in the opinions of two orthopedic providers, *745 Dr. Smith and Dr. Jeffrey Rosen. Specifically, Dr. Rosen, claimants' later authorized orthopedic provider, opined in his deposition that claimant's accident was not a major contributing cause of her current knee condition. To the contrary, Dr. Smith, during his deposition, testified he believed the industrial accident was a "greater cause" for claimant's "need for ongoing treatment" than any other cause. The JCC denied the request for an EMA, finding "the foundational support for the conflict did not exist because the opinion that reportedly established the conflict came from a physician whose opinions could not be accepted pursuant to section 440.13(5)(e)."
Section 440.13(5)(e), Florida Statutes (Supp.1998), governs medical opinion testimony in workers' compensation proceedings and provides in pertinent part:
No medical opinion other than the opinion of a medical advisor appointed by the [JCC] or division, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the [JCC].
(Emphasis added.)
"The law is clear that a JCC errs in admitting the opinion testimony of a physician who does not fall into one of these categories." Seminole County Sch. Bd. v. Tweedie, 922 So.2d 1011, 1012 (Fla. 1st DCA 2006). Further, although not defined in chapter 440, an "authorized treating provider," as the term is used in section 440.13(5)(e), Florida Statutes, means "a treating provider authorized by the E/SA." Rucker v. City of Ocala, 684 So.2d 836, 840 (Fla. 1st DCA 1996); see also Tweedie, 922 So.2d at 1012 (holding "authorized treating provider" means "provider who has been authorized by an E/SA"). However, the question of whether a currently de-authorized provider who was, at one time, an authorized provider may qualify to provide testimony pursuant to section 440.13(5)(e) is a question of first impression before this court.
A plain reading of the statute does not offer guidance. Specifically, the statute's language provides only authorized physicians, independent medical examiners (IMEs), and EMAs may testify in workers' compensation proceedings; however, the statute does not use the term "currently authorized treating provider" or otherwise suggest the authorization of the provider must be in existence at the time of the benefits hearing. Thus, because the statute is ambiguous on its face, this court must look to legislative intent. Murray v. Mariner Health, 994 So.2d 1051 (Fla.2008) (holding when a statute is unclear or ambiguous on its face, the court must next determine legislative intent)(citing Starr Tyme, Inc. v. Cohen, 659 So.2d 1064 (Fla. 1995)).
Section 440.13 was amended in 1993 to include subsection (5)(e), limiting medical opinion testimony to only EMAs, providers, and IMEs. See Ch. 93-415, § 17, Laws of Fla. The Governor's reform proposal of 1993 outlined the general goals of these amendments and included one of those goals as limiting a perceived "doctor-shopping" problem. The Governor's Worker's Compensation Reform Proposal on Fla. S. Bill 12C, § 17 (1993), A Summary (Oct. 21, 1993). Further, section 440.015, Florida Statutes, which provides the legislative intent for the passing of Chapter 440, was likewise amended in 1993 to include the following pertinent language:
.... It is the intent of the Legislature to ensure the prompt delivery of benefits to the injured worker. Therefore, an efficient and self-executing system must be created which is not an economic or administrative burden. The Division *746 of Workers' Compensation shall administer the Workers' Compensation Law in a manner which facilitates the self-execution of the system and the process of ensuring a prompt and cost-effective delivery of payments.
See Ch. 93-415, Laws of Fla.
We find that interpreting section 440.13(5)(e) to preclude the admission of a de-authorized physician's medical opinion would contravene the purposes of both section 440.13(5)(e) and chapter 440. Specifically, this interpretation would enable an employer/servicing agency (E/SA) simply to de-authorize a physician at any time it does not want the opinion of that particular physician in evidence. Likewise, a claimant could preclude the admission of a physician's disadvantageous opinion by simply requesting his or her one-time change, thereby requiring the E/SA to de-authorize the current treating physician. This type of "doctor shopping" stimulated the need to add section 440.13(5)(e) in 1993. See The Governor's Worker's Compensation Reform Proposal on Fla. S. Bill 12C, § 17 (1993), A Summary (Oct. 21, 1993), initiating the passage of Fla. SB 12-C (1993).
In addition, gamesmanship of this sort defeats the underlying purpose of the workers' compensation system to provide timely hearings and to allow for the prompt delivery of benefits to injured employees. See § 440.015, Fla. Stat. (2009). Specifically, last minute de-authorizations and authorizations of medical providers can cause meaningful delays in petition for benefits hearings and hinder a prompt determination of whether an injured employee is due payments and/or services.
Further, interpreting section 440.13(5)(e) to preclude medical testimony of previously authorized treating physicians could lead to absurd and unintended results. There are countless examples evidencing the need for a common sense interpretation of section 440.13(5)(e). For instance, if an authorized physician determines an employee has a zero percent impairment rating and needs no further treatment, the physician is no longer treating, as the employee has no condition to treat. Surely this previously authorized, but no longer "treating" physician is permitted to testify as to the employee's condition. This scenario demonstrates the difficulties that may arise with the interpretation of section 440.13(5)(e) suggested by appellee. Thus, we find the JCC erred in excluding Dr. Smith's testimony because the statutory provision is ambiguous on its face, and interpreting section 440.13(5)(e) as a per se ban against all de-authorized treating physicians contravenes the statute's stated purpose, as well as may lead to many unintended quagmires.[*] Further, because the JCC erred in excluding the testimony, the JCC likewise erred in failing to order an EMA as required when a disagreement arises between two admissible medical opinions pursuant to section 440.13(5)(e), Florida Statutes (Supp.1998). For the foregoing reasons, we reverse and remand for further proceedings consistent with this opinion.
WEBSTER and THOMAS, JJ., concur.
NOTES
[*] We recognize while there may exist credibility concerns with providers who have not examined a claimant for a number of years, the provider's medical opinion would still be admissible pursuant to the statute; however, the weight and credibility to be given that testimony would remain at the discretion of the JCC. Raban v. Federal Exp., 13 So.3d 140, 144 (Fla. 1st DCA 2009) (citing Frederick v. United Airlines, 688 So.2d 412, 413 (Fla. 1st DCA 1997)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/316289/ | 490 F.2d 185
I. S. JOSEPH COMPANY, INC., Plaintff-Appellant,v.CITRUS FEED COMPANY, INC., et al., Defendants-Appellees.
No. 72-3561.
United States Court of Appeals, Fifth Circuit.
Feb. 20, 1974, Rehearing and Rehearing En Banc Denied April 3, 1974.
William A. Gillen, Edward M. Waller, Jr., Tampa, Fla., for plaintiff-appellant.
Monterey Campbell, Bartow, Fla., for defendants-appellees.
Before BELL, COLEMAN and RONEY, Circuit Judges.
COLEMAN, Circuit Judge:
1
This is a diversity suit for breach of an alleged oral contract to deliver 10,000 tons of dried citrus pulp for use in the manufacture of pelletized cattle feed. The verdict of the jury was for the defendants, both as to the claim and as to a counterclaim. We affirm.
2
The plaintiff, I. S. Joseph Company, of Minneapolis, Minnesota, was in the business at Tampa, Florida, of making citrus pulp pellets for sale in foreign markets, particularly Europe. It purchased citrus pulp from various producers in Florida.
3
The defendant, Citrus Feed Company, with plants at several places in Florida, was in the business of processing bulk, dried citrus pulp as it came from the primary citrus processors who were making frozen citrus juice and the like. Citrus Feed's method of operation was to set up its tanks, driers, etc., on the property of the primary processors, taking their total output of pulp as originally processed, drying it, and turning it into feed pulp which could thereafter be pelleted, as accomplished in Joseph's operation.
4
From 1966 to 1969, Citrus Feed had been selling pulp to Joseph. These sales had been made, however, as the commodity was produced, or substantially so. The use of advance contracts by which pulp was purchased ahead of the actual citrus season had not been initiated.
5
At the onset of the 1969-1970 citrus fruit season, there were negotiations between Citrus Feed and Joseph, handled exclusively by one representative of each, for the purchase and sale of citrus pulp. These representatives were Jenkins, sales manager for Citrus, and Kiefer, Tampa manager for Joseph. There were no witnesses to their negotiations or to their purported agreements.
6
On the trial in the Court below Kiefer testified that Jenkins, on August 25, verbally and unconditionally agreed to deliver 5,000 tons of pulp at an agreed price and that on September 25 Jenkins unconditionally agreed to deliver an additional 5,000 tons.
7
Jenkins, however, testified that he had agreed to deliver only such quantities of pulp as Citrus might process in excess of that required to supply its regular customers.1
8
There was never any formal, written contract.
9
On August 25, 1969, in separate documents, Joseph mailed to Citrus two 'Confirmations of Purchase' for 2,500 tons each of dried citrus pulp, to be shipped between the latter half of December, 1969 through May, 1970. An exactly similar document was sent for the purchase allegedly made on September 25 for 5,000 tons to be 'scattered January through June, 1970'. Joseph's Vice President testified that it was the custom in its Minneapolis operations to send along a duplicate copy which the seller was required to sign and return but that it was not done in this case because things were just not done that way in Florida. $yCitrus made no response, written or otherwise, to any of the 'Confirmations'.
10
On October 13, 1969, Joseph wrote a letter to Citrus:
11
'Just a note to bring you up to date on our export activities and to advise that the 10,000 tons of citrus pulp which we will receive from you during this campaign has been sold to a European consumer and we now look forward to receiving the product and fulfilling the contract with our European buyer.'
12
It is to be noted that this letter referred to 'citrus pulp which we will receive from you'. It did not use terms such as 'which you have cnotracted (or agreed) to deliver'. It did express an expectation of receipt.
13
This letter pinpoints the date of the sale of the expected tonnage to European purchasers as somewhere around the first of October. This was before Citrus delivered any pulp to Joseph. The European sales thus had to be made in reliance upon whatever Jenkins had agreed to prior to the issuance of the 'Confirmations'.
14
At any rate, Citrus Feed made no response to this letter.
15
Thereafter, at various intervals between November and February, sometimes on a daily basis, by freight car or truck, Citrus Feed did ship a total of 2,500 tons to Joseph, at the price named in the 'Confirmations'.
16
According to proof on behalf of Joseph, a Citrus representative told a Joseph representative at a meeting in Lakeland on December 18 that Joseph was lucky to have its contract with Citrus because the price of pulp had gone up and that Citrus would fulfill its obligations under the 'contracts'.
17
After February, 1970, Citrus made no further shipments and this lawsuit followed, seeking, inter alia, to recover the difference between the claimed contracted purchase price and what Joseph allegedly had to pay elsewhere to cover its commitments to its foreign purchasers.
18
The fiscal situation of the parties was affected by the following operative facts: It cost Citrus Feed $19 per ton to produce the pulp. It was obligated to pay the primary producer the difference between $22 and the prevailing market price per ton for raw pulp. If there was a contract with Joseph at $22.50 and the prevailing price in the market place was $25, Citrus would owe the primary producer $3 per ton. Thus its production costs would be $22 a ton and it would realize a net profit of only 50 cents per ton. Serious problems developed when the pulp market price went to $30 per ton in December and much higher thereafter. In a $30 situation, Citrus would have its fixed cost of $19 plus the $8 rebate to the primary processor, which meant that it would lose $4.50 on every ton shipped to Joseph. The market in January rose to $35, which would escalate the net loss to $9.50 per ton. Joseph says this is what motivated Citrus Feed to stop delivering for $22.50 per ton.
19
In its complaint, Joseph alleged that to meet its European obligations it had to pay $127,000 more for the 7,500 tons of pulp in the open market than it would have cost if obtained at $22.50 per ton and had other costs besides. The case thus presents serious loss potentials for both the appellant and the appellee.
20
In the meantime, before Citrus Feed stopped its deliveries, another set of circumstances came into play. According to testimony on behalf of defendant-appellee, Joseph was inordinately slow in paying for the delivered pulp. Checks were dated as much as thirty days ahead of the time Citrus received them. This continued in such a fashion that by Christmas Joseph owed Citrus in the neighborhood of $60,000 on unpaid delivery invoices. While this was going on, an official of Joseph led Citrus to believe that they could make an arrangement by which Joseph would thereafter purchase the entire production of Citrus Feed. An official of Joseph insisted that Citrus representatives come to Minneapolis during the Christmas holidays for a conference in this regard. The Citrus Feed men hoped they would be paid during this visit but were afraid to mention it because it maight blow up the negotiations for the sale of their entire output. They went to Minneapolis, where they got into a rather stormy argument with Mr. Joseph about whether they were under an unconditional contract to deliver the 10,000 tons named in the prior confirmations. Both as to pay and as to a total sales agreement they departed sackless. To cap it off, Joseph refused to pay for $876.40 worth of Citrus pulp shipped on January 22 and for $2,069.13 worth shipped on February 16. The Defendants counterclaimed for these amounts. Joseph did not deny failure to pay but contended that one shipment was wholly unfit for use and asserted that the other shipment was not paid for because it had become apparent that Citrus Feed was not going to comply with the agreements of August 25 and September 25.
21
As evidenced by the Complaint and by the Plaintiff's opening statement to the jury, this law suit began as one for breach of an unconditional oral contract. At the close of all the proof, Joseph moved for a directed verdict as to liability on the grounds: (1) The testimony and the confirmations established a contract as a matter of law; (2) The evidence established a ratification of the contract, accompanied by partial performance; and (3) The Defendants were estopped to deny the existence of an unconditional oral contract.
22
Citrus Feed defended on the ground that it had agreed only to deliver excess pulp and on the second ground that if there had been a contract Jospeh's failure to pay promptly, coupled with a refusal to pay at all for two shipments, excused it form further performance. It moved for a directed verdict on the latter ground.
23
The Trial Judge denied both motions and submitted the case to the jury. The jury found for Citrus Feed.
24
While there was a general verdict, the jury had evidence from which it obviously could have found that on August 25 and September 25 Sales Manager Jenkins, acting for Citrus Feed, agreed only to deliver excess pulp. On this appeal, however, Joseph travels on the argument that the:
25
'Plaintiff does not contend that the Confirmations of Purchase became the contract. Rather, the Confirmations of Purchase together with the letter of October 13, the discussion of December 18, the shipment by Defendants, and the silence of Defendants throughout, all create an estoppel which precludes the Defendants from denying that they were unconditionally obligated to sell and deliver 10,000 tons.'
26
This litigation involved a contract allegedly made and to be performed in Florida. Thus, where applicable, we look to Florida law.
27
The failure of Citrus Feed to respond to the 'Confirmations' sent by Joseph served only to deprive it of a defense under the Statute of Frauds. It did not relieve Joseph of the burden of convincing the jury by a preponderance of the evidence that an oral contract was, in fact, made. This necessarily would include the essential terms of the contract, The Uniform Commercial Code, 19A Fla.Stat.Ann., 762.2-201, and the accompanying Code comments. By its appellate contentions hereinabove quoted the appellant concedes this point.
28
We are thus remanded to the issue of contract by estoppel-- and that as a matter of law, not as an issue of fact.
29
In its excellent brief, appellant cites a wealth of cases dealing with the general principles of ratification by silence, estoppel by silence, estoppel by inaction, estoppel by words or action, estoppel by conduct, and estoppel by acquiescence. These cases are within the peripheral range of this litigation but, in our opinion, are not, as a matter of law, controlling. We, therefore, abstain from resweeping the field by an extended discussion of their applicability or imapplicability to the issues presently before us, although that they accurately reflect the law in general is not to be doubted.
30
We think the matter is capable of solution by looking directly to Florida law.
31
In the case of Enstrom v. Dunning, 136 Fla. 253, 186 So. 806, 812 (1939) the Supreme Court of Florida enunciated the rule:
32
'No one should be denied the right to set up the truth unless it is in plain contradiction of his former allegations or acts. If an act or admission is susceptible of two constructions, one of which is consistent with a right asserted by the party sought to be estopped, it forms no estoppel.'
33
An estoppel will not be raised against one because he was silent where there was no duty on him to speak, 12 Fla.Jur., Estoppel and Waiver, 42, page 419.
34
We must be careful to point out that this entire controversy was between the original parties to the original agreement-- they and no others. Joseph knew that the agreement was from the very beginning. Nothing it could have been told would have added to that knowledge. No silence could have left Joseph under any misapprehension of the facts. This was not a case wherein copies of Joseph's confirmations were forwarded to third parties who relied upon them to their detriment. There was nothing inconsistent about the delivery of the 2,500 tons of pulp. Citrus Feed had orally agreed to deliver-- the dispute hinges around the amount it was obligated to deliver. The trial record left the jury free to choose between two inferences, one that Citrus did deliver from excess the other that it did not. The verdict indicates that the jury accepted the former. These considerations involved inferences to be drawn from known or disputed facts, and about which reasonable men could readily differ. It, therefore, was appropriate to submit the issues to the determination of a jury. This the Trial Court did, with peculiarly clear and succinct instructions which, among other things, informed the jury that it should consider the conduct of the parties during previous citrus seasons as well as during the 1969-1970 season, including the correspondence between them.
35
As to delay in payments and failure to pay at all, Citrus Feed's second defense, we find the jury to have been properly istructed and as to that ground the verdict is supported by substantial evidence.
36
The Plaintiff-Appellant might well have won the verdict in this case. If this had happened it would, on this record, have been impervious to appellate attack. Joseph might have won before another jury at some other time or place. The immutable fact is that it lost. Perceiving no legal error in the trial, we cannot interfere.
37
Neither do we detect error as to the verdict on the counterclaim.
The Judgment of the District Court is
38
Affirmed.
39
BELL, Circuit Judge (concurring in part and dissenting in part):
40
I respectfully dissent as to one issue. The theory of the suit was breach of an oral contract. The defenses, as pertinent here, were denial of the existence of the alleged contract and, in the alternative, if a contract existed, a claim of material breach by the plaintiff. Both defenses were submitted to the jury.
41
Plaintiff contends on appeal that the trial court erred (1) in not determining as a matter of alw that there was a contract as alleged and (2) in also submitting the defense of a breach of the contract to the jury. I agree with plaintiff as to the first contention but not as to the second. The jury returned a general verdict and it would be necessary under my view to remand the case for a new trial on the breach of contract defense.1
42
A representative of Joseph negotiated with the sales manager of defendants on two occasions prior to the 1969-70 citrus season for the purchase by Joseph of citrus pulp. The sales manager testified for defendants as follows:
43
'. . . We came to an arrangement whereby I would not go out and get any additional customers; I wouldn't go and try to take on a new dairy for the season. Any excess feed that we had during the season we would agree to sell to I. S. Joseph Company . . ..'
44
Following these negotiations, Joseph issued to defendants three documents entitled 'Confirmation of Purchase.' Two were dated August 25, 1969, each confirming a purchase of 2,500 tons of citrus pulp at a stated price. The other was dated September 25, 1969 and was for 5,000 tons at the same price. On October 13, 1969 the representative of Joseph who had carried on the negotiations wrote to the defendants, referring to the 10,000 tons of citrus pulp which was to be received from them and stating that it had been sold to a European customer.
45
The defendants thereafter delivered 2,500 tons of pulp to Joseph at the agreed price. Meanwhile the market price had increased in stages from $22.50 per ton to $40.00 per ton. The last shipment was made by defendants on February 16, 1970. In early March and prior to March 6, 1970, they advised Joseph that they would make no further shipments.
46
Defendants denied that there was a contract, contending that they refused to make a firm contract because Joseph would not agree to a 'freeze' clause. The difficulty with this position is that defendants' sales manager testified to the contrary, i.e., that the agreement was for excess pulp only. This means that defendants would be excused on a pro tanto basis from performing to the extent that no excess was available, whether due to a freeze or otherwise. I am unable to discover any contention by defendants that they failed to deliver because of lack of excess product.
47
It appears that negotiations continued between the parties for several months over a contract whereunder Joseph would take all of defendants' production but that these negotiations were unsuccessful. It is to be noted that these negotiations were aside from the contract, if there was a contract, for the acquisition of the 10,000 tons of pulp.
48
The district court concluded that the question whether a contract existed presented a jury issue. I disagree and am thus also in disagreement with the majority.
49
I find it unnecessary to go beyond, first, the testimony for defendants that they intended to sell any excess citrus pulp to Joseph, and second, the confirmations of purchases and the letter of October 13 which are consistent with that stated intention. These documents confirmed what defendants say they agreed to do, at least up to 10,000 tons of any excess pulp. This much was undisputed and made the contract as I see it. This view is buttressed by defendants' shipping 2,500 tons under one of the August 25 confirmations.
50
The other issue submitted to the jury under the general verdict was the alternative assertion that plaintiff breached the contract. I agree with the majority that this issue was for the jury but, as noted supra, because of the general verdict a new trial on this single issue would be necessary even if my views had prevailed.
1
Oddly enough, in an unusually tedious trial, marked by frequent wrangles over inconsequential matters, neither Joseph nor Citrus made a definite effort to prove the existence or non-existence of such an 'excess', or the amount of it at any given time. In the briefs, our attention is directed to some isolated figures from which we are invited to draw conclusions on tis subject. We find this proof too insubstantial to support a view grounded on undisputed evidence. We are not a fact finding Court. We apply the familiar rule that disputed factual issues must be viewed in the light most favorable to the jury verdict
1
Special interrogatories under Rule 49(b), F.R.Civ.P., might have obviated a new trial | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/323092/ | 506 F.2d 401
UNITED STATES of America, Plaintiff-Appellee,v.Sharon Maria NEWELL and Maria del Socorro Franco Guerra,Defendants-Appellants.
No. 73-2538.
United States Court of Appeals, Fifth Circuit.
Jan. 9, 1975, Rehearing and Rehearing En Banc Denied March 4, 1975.
Roberto J. Yzaguirre, Knox Jones, McAllen, Tex., for defendants-appellants.
Anthony J. P. Farris, U.S. Atty., Edward B. McDonough, Jr., James R. Gough, Mary L. Sinderson, Asst. U.S. Attys., Anna E. Stool, Atty., Dept. of Justice, Houston, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before TUTTLE, WISDOM and GOLDBERG, Circuit Judges.
TUTTLE, Circuit Judge:
1
Sharon Maria Newell and Maria del Socorro Franco Guerra appeal their convictions for one count each of knowingly and intentionally possessing, with intent to distribute, marijuana, a Schedule I controlled substance, in violation of 21 U.S.C. 841(a)(1). They contend that the search during which the marijuana was discovered violated their rights under the Fourth Amendment of the United States Constitution.
2
We agree and therefore reverse their convictions.
I.
3
'As is usual in the search and seizure area, the particular factual setting is of critical importance to the disposition of this case.' United States v. Bursey, 491 F.2d 531, 532 (5th Cir. 1974). The facts of this case are simple and undisputed.
4
The appellants were driving a latemodel passenger automobile bearing Starr County, Texas, license plates north on Texas Highway 16 in the early evening of March 3, 1973. Agent Jose E. Garza of the United States Border Patrol, who was driving south on Highway 16 at the same time, noticed the appellants' car a few miles south of Hebronville, Texas, and made a u-turn to pursue it. The Agent lost sight of the appellants' vehicle in the heavy Saturday evening traffic, but re-sighted it approximately one-half hour later, at 8:30 p.m., at a point four miles north of Hebronville on Highway 16.
5
Agent Garza stopped the appellants' vehicle at this point, which is approximately 56 miles north of the Mexican border, to make a 'routine immigration check' for illegal aliens. After ascertaining Ms. Newell's American citizenship, he asked Ms. Newell to open the trunk of the car, which she did. He saw in the trunk a leather suitcase, a metal footlocker1 and two overnight bags. He felt the footlocker, which, he testified 'seemed a little heavier than usual.' He asked Ms. Newell to open the footlocker, but she replied that she did not have the necessary key. He then 'cracked' open the footlocker by using tools and detected a 'strong odor of marijuana.' Further search produced sixty-three pounds of semi-refined marijuana in brick form.
6
Prior to trial, the defendants moved to suppress the evidence of the marijuana on the ground that it was discovered during an illegal search, but the motion was denied. The defendants waived trial by jury and were found guilty by the district court.
II.
7
The appellants argue that the warrantless search that led to their convictions was illegal under Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). However, the search in this case occurred on March 3, 1973, and this Court en banc, United States v. Miller,499 F.2d 1247 (5th Cir. 1974), has held that searches prior to June 21, 1973 (the effective date of Almeida-Sanchez) must be governed by pre-Almeida-Sanchez law. Applying pre-Almeida-Sanchez law as we must then to the facts of this case, we hold that the search was illegal.2
8
Although the extreme parameters of the 'border search' doctrine under pre-Almeida-Sanchez law have not always been clear, there is virtually no dispute over the basic elements of the doctrine.
9
' The so-called border search has long been recognized as an exception to both the warrant and probable cause requirements of the Fourth Amendment to the Constitution.' United States v. Diemler, 498 F.2d 1070, 1071 (5th Cir. 1974). United States v. Thompson, 475 F.2d 1359 (5th Cir. 1973); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). However, the exception-- which like others in the area is 'jealously and carefully drawn,' Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)-- does not extinguish the general rule imposed by the Fourth Amendment: the search must still be reasonable. United States v. Diemler, supra; United States v. Rodriguez-Hernandez, 493 F.2d 168 (5th Cir. 1974); United States v. Warner, 441 F.2d 821 (5th Cir. 1971), cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971).
10
This Court has developed two tests of the reasonableness of 'border searches' by 'roving patrols':
11
1. Border Nexus. 'Some connection or contact with the border must be shown, even though the vehicle itself need not have crossed the border.' United States v. Diemler, supra, at 1072. The test may be satisfied by 'showing that the vehicle or its passengers have recently crossed the border or been in touch with those who have . . .' United States v. Storm, 480 F.2d 701, 704, n. 5 (5th Cir. 1973); United States v. Speed, 497 F.2d 546 (5th Cir. 1974). See, also, United States v. Byrd, 494 F.2d 1284 (5th Cir. 1974); United States v. Bursey, supra; United States v. Steinkoenig, 487 F.2d 225 (5th Cir. 1973); Marsh v. United States, 344 F.2d 317 (5th Cir. 1965).
12
2. Reasonable Suspicion. 'Although the probable cause standard of the Fourth Amendment need not be met, the officer conducting the search must have a reasonable suspicion of illegal activity.' United States v. Diemler, supra, 498 F.2d at 1072; United States v. Daly, 493 F.2d 395 (5th Cir. 1974); United States v. Storm, supra; United States v. McDaniel, 463 F.2d 129 (5th Cir. 1972), cert. denied 413 U.S. 919, 93 S.Ct. 3046, 37 L.Ed.2d 1041 (1972); Morales v. United States, 378 F.2d 187 (5th Cir. 1967); Thomas v. United States, 372 F.2d 252 (5th Cir. 1967); Marsh v. United States, supra. This test is circumscribed by the requirement that the suspected illegal activity be not merely any violation of the law, but a violation of the Custom or Immigration law. United States v. Diemler, Supra; United States v. McDaniel, supra. See, also United States v. Solis, 469 F.2d 1113, 1114-1115, n. 2 (5th Cir. 1972), cert. denied, 410 U.S. 932, 93 S.Ct. 1375, 35 L.Ed.2d 594 (1973).
13
The burden is on the Government to prove that both tests are satisfied. United States v. Diemler, supra; United States v. Marsh,supra. See, generally, Coolidge v. New Hampshire, supra, 403 U.S. at 454-455, 91 S.Ct. 2022. Where the Government fails to carry the burden of proving that both tests have been met, 'those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search.' Carroll v. United States, supra, 267 U.S. at 154, 45 S.Ct. at 285; United States v. Storm, supra, 480 F.2d at 704; Marsh, supra, 344 F.2d at 325.
14
In the case before us, the Government has failed to meet either test.
15
A. Border Nexus.
16
The record clearly demonstrates that the Government introduced absolutely no evidence that either the vehicle or its passengers had any contact with the border or with those who had. Although this failure is enough to require reversal, United States v. Diemler, supra, we proceed to consider the second test as well, because the Government seems to suggest that its evidence of facts amounting to 'reasonable suspicion' in this case imply the requisite border nexus.
17
B. Reasonable Suspicion.
18
The Government rests its case on the validity of the search entirely on two facts that it argues amount to a reasonable suspicion that the appellants had violated a Customs or Immigration law: 1) that the automobile carried two women travelling alone and at night; and 2) that the automobile bore out-of-county license plates.
19
A careful examination of the record reveals that the first fact relied upon by the Government is completely without basis. Agent Garza testified that when he first approached the appellants' vehicle after stopping it he did not know that its occupants were female. It was only when he addressed the driver, Ms. Newell, that he discovered that both parties were women. The Agent's decision to stop the appellants' vehicle thus had nothing to do with the fact that the automobile carried two women driving alone at night.3
20
The record does show that the appellants' automobile bore out-of-county license plates. This fact, argues the Government, brings the case within the ambit of United States v. Thompson, 475 F.2d 1359 (5th Cir. 1973), where this Court found that the same agent (Garza) at almost the same point (one mile north of Hebronville) had reasonable suspicion to stop and search a vehicle because it bore out-of-state license plates (Arkansas) and was following a circuitous route4 from the border.
21
The Government's analogy of Thompson, with an out-of-state car taking a circuitous route, to the case before us, with an in-state car taking a direct route, is obviously imperfect.5 The analogy loses any merit whatsoever when it is realized that the appellants' vehicle bore not just any out-of-county license plates but plates denoting Starr County-- a county adjacent to Jim Hogg County, where Hebronville is located. In this light, the facts relied upon by the Government to constitute 'reasonable suspicion' amount to no more than that a local car occupied by two persons was driving on a direct route north from their adjacent home county. If these facts were allowed to constitute 'reasonable suspicion,' then agents would be authorized to stop and search any automobile that was proceeding north on one of the highways in the area and not bearing in-county license plates. This result would render the requirement of 'reasonable suspicion' nugatory and make the Fourth Amendment a dead letter. There is simply no basis in the law to support such a sweeping result. We have said time and again that mere proximity to the border does not automatically place the citizenry 'within a deconstitutionalized zone.' United States v. McDaniel, supra, 463 F.2d at 132-133; United States v. Diemler, supra, 498 F.2d at 1072; United States v. Speed, supra, 497 F.2d at 548. As the Supreme Court said nearly fifty years ago in a similar context, 'It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search.' Carroll v. United States, supra, 267 U.S. at 153-154, 45 S.Ct. at 285.
22
In short, the Government has failed completely to produce any facts that would demonstrate that the appellants had any nexus with the border or that the Agent had any grounds to hold reasonable suspicion that the appellants had violated a Customs or Immigration law. This failure makes the search of the appellants' vehicle illegal, and the judgments of conviction are accordingly reversed.
1
No other description nor any dimensions of the footlocker were put into the record
2
Our holding therefore makes it unnecessary to await the decision of the Supreme Court in United States v. Ortiz (9th Cir. June 19, 1974), cert. Granted, U.S. , 95 S.Ct. 40, 42 L.Ed.2d 47 (1974), which raises the question of the retroactivity of Almeida-Sanchez
3
Moreover, the Government, doubtless recognizing the insubstantiality of this ground, abandoned it at oral argument
4
The Court found that the vehicle in Thompson had travelled an indirect route, via State Highway 359, from Laredo toward Freer, rather than the direct route via U.S. Highway 59, and implicitly sanctioned the Agent's conclusion that it was 'unusual that an out-of-state car would travel this roundabout route.' 475 F.2d at 1363
5
It must be further noted that Laredo, the western terminus of State Highway 359, is a port-of-entry from Mexico, while Zapata, the southern terminus of U.S. Highway 16, is not. The nearest ports-of-entry to Zapata are Laredo and Roma, 40 and 45 miles away, respectively. Thus the presumption of border contact in Thompson is wholly lacking in the case before us | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/710231/ | 72 F.3d 1133
64 USLW 2420, 11 IER Cases 417, 19Employee Benefits Cas. 2721,7 NDLR P 333
John DOE, a SEPTA employee, Appellee,v.SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY (SEPTA),and Judith Pierce, individually and in herofficial capacity, Appellants.
No. 95-1559.
United States Court of Appeals, Third Circuit.
Argued Oct. 11, 1995.Decided Dec. 28, 1995.
Clifford A. Boardman (argued), Philadelphia, PA, Yolanda Lollis, AIDS Law Project of Pennsylvania, Philadelphia, PA, for Appellee.
J. Freedley Hunsicker, Jr. (argued), Drinker, Biddle & Reath, Philadelphia, PA, for Appellants.
Before: GREENBERG, LEWIS and ROSENN, Circuit Judges.
OPINION OF THE COURT
ROSENN, Circuit Judge.
1
This appeal requires that we probe the depth and breadth of an employee's conditional right to privacy in his prescription drug records. John Doe, an employee of the Southeastern Pennsylvania Transportation Authority (SEPTA),1 initiated this action under 42 U.S.C. Sec. 1983 against his self-insured employer, alleging that the defendants violated his right to privacy. Plaintiff claims that, in monitoring the prescription drug program put in place by SEPTA for fraud, drug abuse and excessive costs, the Chief Administrative Officer, Judith Pierce, and the Director of Benefits, Jacob Aufschauer, learned that John Doe had contracted Acquired Immunodeficiency Syndrome (AIDS). This, he alleges, invaded his right to privacy.
2
A jury found for the plaintiff and awarded him $125,000 in compensatory damages for his emotional distress. The trial court denied defendants' motion under Rule 50 for judgment as a matter of law, or alternatively for a new trial. The court also denied defendants' motion for a reduction in damages. The defendants timely appealed. We reverse.
I.
3
We set forth the facts as the jury could have found them in support of its verdict. Accordingly, all evidence and inferences therefrom must be taken in the light most favorable to the verdict winner. See Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 691-92 (3d Cir.1993) (as amended on petition for rehearing). In 1990, Judith Pierce became the Chief Administrative Officer for SEPTA. Her responsibilities included containing the costs of SEPTA's self-insured health program. In 1992, a bargaining agreement with Local Union 234 required SEPTA to provide, inter alia, prescription drugs for the employees. SEPTA entered into a contract with Rite-Aid Drug Store to be the sole provider for all of SEPTA's prescription drug programs. As part of this contract, Rite-Aid provided SEPTA with an estimate of the yearly costs of this program. If, at the end of the year, the actual cost to Rite-Aid amounted to over 115% of that estimate, SEPTA would have to pay substantial penalties; however, if the actual cost was 90% or less of that estimate, SEPTA would be entitled to rebates. Pierce was responsible for monitoring those costs.
4
John Doe is a SEPTA employee. At all times relevant to this appeal, Doe was HIV-positive, and had contracted AIDS by the time of trial. In 1991, Doe began to take Retrovir for his condition. Retrovir is a prescription drug used solely to treat HIV. Before filling his prescription, Doe asked Dr. Richard Press, the head of SEPTA's Medical Department and Doe's direct supervisor, if he or anyone else reviewed employee names in association with the drugs the employees were taking. Doe wished to keep his condition a secret from his co-workers. Dr. Press assured Doe that he had only been asked to review names on prescriptions in cases of suspected narcotics abuse and knew of no other review that included names. After receiving this information, Doe filled his prescription through the employer's health insurance. He continued to do so after SEPTA switched to Rite-Aid; he was never informed that this change might alter his confidentiality status.
5
In November of 1992, Pierce requested and received utilization reports from Rite-Aid. These reports were part of the contract between Rite-Aid and SEPTA. Pierce did not request the names of SEPTA employees in the reports, and Rite-Aid sent the reports in their standard format. They included statistics on the number of employees with five or more prescriptions dispensed in a one-month period, the top 25% by cost of drugs bought by SEPTA employees, and the report at issue here. This report listed employees who were filling prescriptions at a cost of $100 or more per employee in the past month. Each line of the report included the name of an employee or dependent, a code to identify the prescribing doctor, the dispense date of the prescription, the name of the drug, the number of days supplied, and the total cost. Pierce called Aufschauer into her office, and the two of them reviewed the report. It was immediately apparent to Pierce that the reports would reveal employees' medications; however, she reviewed them in the format as submitted. She did not at that time request Rite-Aid to redesign SEPTA's reports to encode employees' names.
6
Pierce stated that her purpose in reviewing the reports with Aufschauer was several-fold. First, she wanted to look for signs of fraud and drug abuse. She testified that in the past, some employees would purchase prescription drugs under the SEPTA health plan in order to give them to an ill friend or relative who was not covered by SEPTA's benefit package. Second, Pierce wanted to determine if Rite-Aid was fulfilling its promise to use generic rather than brand name drugs whenever possible. Third, although they were both covered in the Rite-Aid contract, Pierce wanted to determine the cost to SEPTA of fertility drugs and medications to help employees stop smoking, such as nicotine patches. Finally, Pierce wanted to determine whether the reports were in a summary form and whether they would permit an audit. Her review, however, focused almost entirely on the current report, which included employees' names. She also testified that people who had seen this report, she, Aufschauer, and Dr. Press "were very careful to maintain the confidentiality of the people."
7
Pierce and Aufschauer scanned the reports. When they came across a drug name neither one recognized, they would look it up in a Physician's Desk Reference (PDR) that Pierce had. Pierce then called Dr. Louis Van de Beek, a SEPTA staff physician, and inquired about the drugs not listed in the PDR. She asked the doctor for what Retrovir was used. When Dr. Van de Beek told her it was used in the treatment of AIDS, she inquired whether there was any other use for it. He told her no. She then asked about the three other medications that Doe was taking, and was informed that they were all AIDS medications as well. Pierce discreetly never mentioned Doe by name; however, Dr. Van de Beek was aware of Doe's condition and Doe's medications because Doe himself had disclosed this information to him. Therefore, Dr. Van de Beek deduced that Pierce was asking about Doe. He told her that if she were trying to diagnose employees' conditions through prescriptions, he felt this was improper and possibly illegal. Pierce immediately ended the conversation and told him not to speak of the conversation to anyone.
8
Pierce then took the report to Dr. Press. She asked him if he would be able to perform an audit using the information in the report. Press noted that Pierce had highlighted certain lines on the report, including employees' names and the drugs that each of those highlighted employees were taking. Press testified that the drugs highlighted were all HIV or AIDS-related. Pierce asked Press if he knew whether any of the people whose names were highlighted were HIV-positive. Press said that he was aware of Doe's condition. He then told Pierce that he was uncomfortable with the presence of the names on the report. He also told her that he had neither the expertise nor the resources to perform an audit.
9
Dr. Press then approached James Kilcur, the General Counsel of SEPTA, and expressed his concern about the names on the report. Kilcur called Pierce and asked her whether the names were necessary for her purposes. She replied that they were not and then destroyed the report. SEPTA then instructed Rite Aid to submit all future reports without names.
10
Dr. Van de Beek informed Doe of Pierce's questions. He told Doe that Pierce had likely found out that Doe was HIV-positive. Doe claims he became upset at this news. He avers that he became more upset upon discovering from Dr. Press that Pierce had his name highlighted on a list because he didn't know who had access to or had seen this "AIDS list" and only a few SEPTA employees knew of his HIV-status. He had told Press and Van de Beek, as well as his acting supervisor and the administrative assistant of his department that he had AIDS. He testified that these were all people he trusted to keep this information confidential, and he wanted to explain to them his need for periodic leaves of absence. He did not want Pierce to know of his condition.
11
After these incidents, Doe remained at SEPTA in his current position. He makes no claim of personal discrimination or of any economic deprivation. He later received a salary upgrade and promotion. However, he testified that he felt as though he were being treated differently. A proposal he had made for an in house employee assistance program met with scant interest; he felt that this was because of his HIV condition. In addition, an administrator who reported to Pierce did not call on Doe to assist in the same way that he had called on Doe earlier. Doe testified that he felt as though there was less social chitchat, co-workers ate less of the baked goods he brought to the office to share, and that his work space seemed more lonely than before. He also became fearful of Pierce, who never told Doe that she knew of his illness. Doe alleges that he became depressed and requested a prescription for Zoloft, an antidepressant, from his physician. Later, another antidepressant called Elavil was added to the medications Doe was taking.
12
Doe filed suit in the United States District Court2 against Pierce in both her individual and official capacities, and against SEPTA. Defendants moved for summary judgment on the grounds that Doe had no right to privacy in the information contained in the Rite Aid report; that if he did have such a right it had not been violated because no disclosure had occurred; and that any interest Doe might have in the privacy of these records was outweighed by their legitimate interests in the information. These arguments were rejected by the district court, which denied their motion.
13
After a jury trial, defendants moved under Rule 50 for judgment as a matter of law, or, alternatively, for a new trial under Rule 59. They also moved for a reduction in damages on the grounds that Doe had not proved emotional distress as a result of defendants' actions. The judge granted their motion as to plaintiff's failure to train claim,3 but in all other respects rejected the defendants' motions.
II.
14
The issues raised here present questions of constitutional law. Because this case comes to us on appeal from an order denying a motion for judgment as a matter of law, our review is plenary. Epstein v. Kmart Corp., 13 F.3d 762 (3d Cir.1994); Cole v. Flick, 758 F.2d 124 (3d Cir.), cert. denied, 474 U.S. 921, 106 S.Ct. 253, 88 L.Ed.2d 260 (1985).
15
As a preliminary matter, this court must decide if a person's medical prescription record is within the ambit of information protected by the Constitution. If there is no right to privacy, our inquiry stops. A Sec. 1983 action cannot be maintained unless the underlying act violates a plaintiff's Constitutional rights. Minor annoyances do not make a federal case. When the underlying claim is one of invasion of privacy, the complaint must be "limited to those [rights of privacy] which are 'fundamental' or 'implicit in the concept of ordered liberty' ..." Paul v. Davis, 424 U.S. 693, 713, 96 S.Ct. 1155, 1166, 47 L.Ed.2d 405 reh'g. denied, 425 U.S. 985, 96 S.Ct. 2194, 48 L.Ed.2d 811 (1976), citing Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937).
16
Medical records fall within this scope. The Supreme Court, in Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), noted that the right to privacy encompasses two separate spheres. One of these is an individual's interest in independence in making certain decisions. The other is an interest in avoiding disclosure of personal information. Whalen, at 599-600, 97 S.Ct. at 876-877. Medical records fall within the second category. Id. Therefore, the Court held that individuals do have a limited right to privacy in their medical records. Id. at 602, 97 S.Ct. at 878.
17
This court reinforced this holding through our decision in United States v. Westinghouse Elec. Corp., 638 F.2d 570 (3d Cir.1980). In that case, the federal government, through the Occupational Safety and Health Agency (OSHA), issued a subpoena duces tecum to an employer for its employees' medical records in connection with an investigation of a potentially hazardous work area. The employer refused, asserting the privacy interests of its employees. This court held that, on balance, the interests of the government in the information outweighed these privacy interests; however, they recognized that such records were deserving of a level of constitutional protection. "There can be no question that an employee's medical records, which may contain intimate facts of a personal nature, are well within the ambit of materials entitled to privacy protection." Westinghouse, at 577.
18
The records at issue in Westinghouse included "results of routine testing, such as X-rays, blood tests, pulmonary function tests, hearing and visual tests." Id. at 579. If these records are private, then so must be records of prescription medications. Since the Westinghouse decision fifteen years ago, medical science has improved and specialized its medications. It is now possible from looking at an individual's prescription records to determine that person's illnesses, or even to ascertain such private facts as whether a woman is attempting to conceive a child through the use of fertility drugs. This information is precisely the sort intended to be protected by penumbras of privacy. See Eisenstadt v. Baird, 405 U.S. 438, 450, 92 S.Ct. 1029, 1036, 31 L.Ed.2d 349 (1972) ("If the right of privacy means anything, it is the right of the individual ... to be free from unwanted governmental intrusions into matters so fundamentally affecting a person as the decision whether to bear or beget a child."). An individual using prescription drugs has a right to expect that such information will customarily remain private. The district court, therefore, committed no error in its holding that there is a constitutional right to privacy in one's prescription records.
III.
19
Such a right is not absolute, however. See Whalen v. Roe, 429 U.S. at 602, 97 S.Ct. at 878 (while individuals have a legitimate expectation of privacy in their prescription purchases of controlled substances, such right must be weighed against the state's interest in monitoring the use of dangerously addictive drugs).
20
[D]isclosures of private medical information to doctors, to hospital personnel, to insurance companies, and to public health agencies are often an essential part of modern medical practice even when the disclosure may reflect unfavorably on the character of the patient.
21
Id. In addition, disclosure of private medical information is necessary for the pharmacy filing the prescriptions. The Court also cited examples of statutory reporting requirements relating to various diseases, child abuse, injuries caused by deadly weapons, certifications of fetal death, and the recordkeeping requirements of Missouri abortion laws. Id. at 602 n. 29, 97 S.Ct. at 878 n. 29. As with many individual rights, the right of privacy in one's prescription drug records must be balanced against important competing interests.
22
Before we can perform this balancing test, we must first assess whether, and to what extent, Pierce disclosed Doe's prescription drug information. Obviously, no privacy violation would have taken place had the information from Rite-Aid come in encoded form. A self-insured employer has a right to monitor the use and cost of its health insurance plan. SEPTA's status as a public authority substantially dependent on the public fisc and the rates the public must pay to use its facilities converts this right into a duty. Audits of drug information are essential to that end. In the aggregate, there is no competing privacy interest in those records. Doe would have no cause of action if all that had been disclosed were that an unknown number of people at SEPTA were purchasing Retrovir for the treatment of HIV-related illnesses. Therefore, such disclosure as occurred came only when Doe's name was revealed with respect to his purchase of drugs under SEPTA's prescription drug program.
23
Both Pierce and Aufschauer learned of Doe's illness through the Rite-Aid report. Pierce's initial discovery of the names on the report was inadvertent. She had not requested names from Rite-Aid and there is no evidence that she expected to find them when she opened their standard report. This alone would not be sufficient to prove a constitutional violation for disclosure.4 However, Pierce then spent some time and effort researching the report with the names on it. She highlighted, for her research purposes, those names on the report whose medications she was unfamiliar with and which were expensive, including Doe's, and called two SEPTA staff physicians to ask about medications she did not recognize. It was through this inquiry that Pierce learned about Doe's condition. She did not know the uses of Retrovir before she did this research.
24
Aufschauer learned of Doe's condition through his work as Director of Benefits and Pierce's subordinate. Pierce disclosed the information to him in the course of their work. SEPTA argues that this disclosure was necessary, as Aufschauer also had reasons for needing this information. Aufschauer's legitimate need for this information may affect whether the disclosure is an actionable one. It does not alter the existence of disclosure.
25
Nor can Pierce and Aufschauer be considered as a single unit for the purpose of determining disclosure. A disclosure occurs in the workplace each time private information is communicated to a new person, regardless of the relationship between the co-workers sharing that information. By analogy, district courts in this circuit have held that there is publication, such that a libel or slander is actionable, when the defamatory statement is disclosed only to the speaker's agent. Elbeshbeshy v. Franklin Institute, 618 F.Supp. 170 (W.D.Pa.1985). Therefore, we hold that each person who learned of Doe's condition constitutes a separate disclosure for the purposes of Doe's invasion of privacy action.
26
To hold differently would lead us to a decision that Doe had waived his right to privacy by voluntarily disclosing his medical condition to co-workers at SEPTA. We are not faced with a situation where persons to whom Doe disclosed this information told others. Rather, Pierce and Aufschauer learned his condition completely independently of Doe's disclosures. His decision to give private information to some co-workers does not give carte blanche to other co-workers to invade his privacy. See Laurence Tribe, American Constitutional Law, 2d ed., at 1391 ("[W]hat could be more commonplace than the idea that it is up to the individual to measure out information about herself selectively[?].... [A] secret remains a secret even when shared with those whom one selects for one's confidences.")
27
However, we are not persuaded that the impingement on Doe's privacy by the disclosure to SEPTA's Chief Medical Officer, Dr. Press, amounts to a constitutional violation. Doe himself had already voluntarily informed Dr. Press of his condition. Dr. Press did not learn any new information from Pierce's actions. Plaintiff asserts that Dr. Van de Beek, as well, learned of the information from Pierce. Van de Beek, like Dr. Press, had already heard of Doe's condition from Doe himself. Moreover, Pierce did not disclose Doe's name to Van de Beek. She asked him about medications, and he deduced who she was asking about based on his independent knowledge of Doe's condition. It stretches any theory of liability far too thin to base an invasion of privacy on such conduct. Therefore, there was no disclosure to Dr. Van de Beek. Also, as a matter of law, the cursory disclosure Pierce made to Dr. Press, chief of SEPTA's medical department, a physician, and largely responsible for the health of SEPTA's employees, did not "amount to an impermissible invasion of privacy," Whalen v. Roe, 429 U.S. at 602, 97 S.Ct. at 878, because John Doe had already provided him with this information. Pierce and Aufschauer are the only disclosures to be weighed and balanced.
IV.
28
As we noted earlier, an individual's privacy interest in his or her prescription records is not an absolute right against disclosure. This interest must be weighed against the interests of the employer in obtaining the information. We apply an intermediate standard of review in making this determination. Fraternal Order of Police, Lodge 5 v. Philadelphia, 812 F.2d 105, 110 (3d Cir.1987) (hereafter FOP ). FOP also noted that the more stringent "compelling interest analysis" would be used when the intrusion on an individual's privacy was severe. We are not faced with such a situation here. The intrusion upon Doe's privacy was minimal at worst.
29
This court has previously enumerated the factors to be weighed in determining whether a given disclosure constitutes an actionable invasion of privacy in United States v. Westinghouse Electric Corp., 638 F.2d 570 (3d Cir.1980). In Westinghouse, the federal government, through OSHA, served a subpoena duces tecum on Westinghouse for its employees' medical records in connection with an investigation concerning a possible health hazard in the workplace. Westinghouse, as employer, moved to quash the subpoena, asserting, jus tertii, its employees' rights of privacy in those records. Here, in contrast, SEPTA is the employer, who legitimately sought prescription information to ascertain whether there were abuses of its health program, either by the supplier or the consumer/employee. Moreover, the remedy sought for the alleged invasion here is damages rather than a quashing of a subpoena. However, the Westinghouse factors are still good law, and are equally applicable to this situation.
30
Westinghouse mandates a consideration of seven different factors. They are: (1) the type of record requested; (2) the information it does or might contain; (3) the potential for harm in any subsequent nonconsensual disclosure; (4) the injury from disclosure to the relationship in which the record was generated; (5) the adequacy of safeguards to prevent unauthorized disclosure; (6) the degree of need for access; and (7) whether there is an express statutory mandate, articulated public policy, or other recognizable public interest favoring access. Westinghouse, 638 F.2d at 578. Although some of these factors may be in Doe's favor, overall, we believe the balance weighs on the side of permitting the disclosures present here. There is a strong public interest of the Transportation Authority, and the many thousands of people it serves, in containing its costs and expenses by permitting this sort of research by authorized personnel. This interest outweighs the minimal intrusion, particularly given the lack of any economic loss, discrimination, or harassment actually suffered by plaintiff.
31
The type of record requested here was the first print-out of prescription medications furnished by SEPTA to its employees under its contract with the supplier, Rite-Aid. No particular format and no names were requested. The information which Pierce expected it to contain was nothing more than a record of the drugs on which SEPTA had spent over $100 in a given month per individual. However, Rite-Aid, on its own initiative, included in its format the names of each person taking those drugs. As discussed above, this inadvertently-received information is entitled to a measure of confidential protection.
32
In addition, we recognize the possible harm to Doe from disclosure. The district court of New Jersey, in Doe v. Borough of Barrington, 729 F.Supp. 376 (D.N.J.1990), recognized the social stigma, harassment, and discrimination that can result from public knowledge of one's affliction with AIDS. Id. at 384, n. 8. It is unfortunate that public understanding of this disease has changed so little in the intervening years. Although AIDS hysteria may have subsided somewhat, there still exists a risk of much harm from non-consensual dissemination of the information that an individual is inflicted with AIDS.
33
This potential for harm, however, should not blind us to the absence of harm in this case. Despite Pierce's disclosures to her subordinate, Aufschauer, and to Dr. Press that Doe had AIDS, SEPTA promoted him and still retains him in his responsible position. In Doe v. Borough of Barrington, a borough police officer, without justification, told the neighbors of a man suffering from AIDS that the entire family had AIDS. The neighbors reacted by organizing a protest, and trying to prevent the man's children from attending public school. In that case, the court quite rightly held such conduct violated the plaintiffs' privacy rights, and there was no competing interest to justify the disclosure.
34
By contrast, SEPTA had legitimate reasons for obtaining the prescription information from Rite-Aid. Pierce had requested the information in Rite-Aid's standard format; she did not request the names of any employees. She did not disclose the information relating to Doe except to Aufschauer, in connection with their review, and to Dr. Press, for purposes of an audit. Dr. Press, the Chief Medical Officer, already knew of Doe's condition through Doe's voluntary disclosure. Moreover, Pierce destroyed the first report. Under these circumstances, we cannot conclude that Westinghouse factor (3) would impose liability on SEPTA. Although the factor appears to address potential harm, such potential harm must be measured within the context of the disclosure that actually occurred. The potential for harm from a different disclosure of this information, under different circumstances, as in Westinghouse, is not germane here.
35
The record was generated from the relationship between Doe and Rite-Aid, through his filling of the prescription. It is difficult to see how this relationship is affected by Rite-Aid's subsequent generating of reports to Doe's employer. Doe is no doubt aware that insurance companies and providers such as Medicare and Medicaid routinely receive information from drugstores about prescriptions charged to them by the insured. Self-insured employers have the same rights as those providers to similar information. Pierce did not expect that SEPTA would be given access to the names of employees filling prescriptions; however, the harm from this to the Doe-Rite-Aid relationship is non-existent. Once Pierce realized the potential for harm inherent in a report with names, she instructed Rite-Aid that the format for all future reports should be without names. Rite-Aid agreed to comply. Rite-Aid's relationship with SEPTA employees will continue unchanged.
36
Judge Greenberg is of the opinion that the "injury from disclosure" would seem to apply to the relationship between Doe and his employer, not between Doe and Rite-Aid. Thus, he believes that the injury from disclosure to the relationship in which the record was generated could obviously be much greater, if the relevant relationship is between the employer and employee. He concludes, therefore, that factor four may have weighed in favor of Doe in the jury's analysis. However, it must be borne in mind that, even if the injury from disclosure was to the relationship between Doe and SEPTA, it is undisputed that he suffered no economic deprivation, nor any discrimination, nor harassment. It should also be noted that Judge Greenberg nonetheless believes that, because of our conclusion regarding Westinghouse factors six and seven, Doe cannot recover.
37
Factors six and seven strongly favor the defendants. Pierce had a genuine, legitimate and compelling need for the document she requested. Aufschauer, as Director of Benefits, also had a need for the document. Each had a responsibility and obligation to keep insurance costs down and to detect fraudulent and abusive behavior. The report was intended for that purpose. Employers have a legitimate need for monitoring the costs and uses of their employee benefit programs, especially employers who have fiscal responsibilities, as does SEPTA, to the public. As health care costs rise, as they have in recent years, and employers become obligated to expand employee coverage with greater protection for more illnesses and health conditions, health care costs become a major concern for employers as well as for Congress. Ten years ago, health insurance was not among the top concerns of small businesses; today it is number one. Note, "Health Care Cost-Containment and Small Businesses: The Self-Insurance Option," 12 J.L. & Com. 333 (1993). In recent years many industrial strikes have been motivated by the cost of health benefits sought by employees. One of the best ways to monitor these costs is by performing audits on the use to which health plans are being put, and by closely monitoring the use of drugs.
38
Employers also have a right to ensure that their health plan is only being used by those who are authorized to be covered. Finally, the employers have a right to contain costs by requiring that employees use generic drugs rather than brand name when an adequate substitute exists. To accomplish these goals, employers must have access to reports from their prescription suppliers, and they must inspect and audit those reports. That is precisely what Pierce and Aufschauer were engaged in, and this was a legitimate function of their positions. They had a legitimate need for access to information from the drug supplier, and they carefully controlled its use.
39
Because SEPTA is an agency subsidized by the state and federal government, its operating costs are substantially borne by the public who use its facilities and the taxpayers who pay its subsidies. Keeping fares and taxes low, and preserving the public fisc are genuine, recognizable public interests. Therefore, Pierce's need for access, factor six of Westinghouse, also articulates a recognizable public policy encouraging access, as noted in factor seven.
40
As Chief Administrative Officer for SEPTA, Pierce had responsibility for health costs. Her ability over a period of three years to successfully reduce prescription drug and dental costs by a combined total of over $42,000,000 gives us some idea of the immensity of her task and the money at stake. The new contract between SEPTA and Rite-Aid gave strong financial incentives to cut costs if possible. There can be no serious argument that Pierce could do this monitoring without being able to audit reports of the actual costs and the drugs purchased. It is true that the names of the individual employees were unnecessary for this purpose.5 It is equally true that Pierce did not request such names, nor did she disclose those names, or any of the information contained in the report, in anything other than a legitimate manner. Except for Dr. Press, who had the information directly from Doe, the only other person to whom Pierce disclosed the information was Aufschauer. As they requested only information for which they had a legitimate and compelling need, and used the information received in a legitimate, careful and confidential manner, it cannot be said that they violated Doe's right to privacy merely because the first report from Rite-Aid contained unnecessary, unrequested information in which he had a privacy interest.
41
Factor five, however, requires a slightly more complex analysis. It requires us to weigh "the adequacy of safeguards to prevent unauthorized disclosure." As discussed above, there was no unauthorized disclosure. However, as SEPTA was unaware that they would receive such confidential information, and this was their first experience under the Rite-Aid contract, there were no safeguards in place.
42
In FOP, supra, the Philadelphia police department required applicants to the Special Investigative Unit (SIU) to complete questionnaires, which asked for extremely private information. Police officers sought an injunction against its use. One grouping of questions focused on the medical history of the applicant and his family, asking for such information as physical disabilities, prescription drug use, and past psychological histories. FOP, 812 F.2d at 112. Although noting that, in most cases, this private information was irrelevant to the selection of SIU forces, the court also recognized that in some cases, these questions would reveal information essential to the police department. Id. at 113. Therefore, the court permitted the City to ask these questions of all applicants.
43
However, the court expressed concern with the absence of protection of this information. It noted that "there is no statute or regulation that penalizes officials with confidential information from disclosing it." Id. at 118. As a result, the court remanded to the district court with directions to continue the injunction until the "City, the Commissioner, or other appropriate official establishes written, explicit and binding rules that contain adequate safeguards against unnecessary disclosure of the confidential information ..." Id.
44
Were the case before us now also a request for an injunction, and had SEPTA requested the broad information required by the Philadelphia police department, we might have similar concerns. This case, however, is a suit for damages and the information disclosed did not have the breadth requested by the Philadelphia SIU. Doe did not attempt to enjoin further dissemination by SEPTA, although he is still employed by it. Indeed, such a suit would have been moot at its inception. SEPTA has established an adequate safeguard against a recurrence of unnecessary disclosure by requesting that Rite-Aid no longer send such confidential information. Should such information become necessary at some future time, for instance, should names be needed for a more extensive investigation as a result of an initial audit, it can be expected that "written, explicit and binding rules" would be promulgated before such information is requested. But it is an unnecessary burden to require that they be announced when the employer has no knowledge that it will be in receipt of the sort of information that requires these safeguards. Unlike the defendant in FOP, Pierce and SEPTA did not request such information as would put them on notice that they would need to pre-arrange for its confidential handling. Thus, we perceive no violation of the Westinghouse fifth factor.
45
We hold that a self-insured employer's need for access to employee prescription records under its health insurance plan, when the information disclosed is only for the purpose of monitoring the plans by those with a need to know, outweighs an employee's interest in keeping his prescription drug purchases confidential. Such minimal intrusion, although an impingement on privacy, is insufficient to constitute a constitutional violation. The district court should have granted defendants' Rule 50 motion for judgment as a matter of law.
V.
46
In light of the conclusion we reach that the defendants did not violate plaintiff's right of privacy, we need not decide whether the plaintiff's testimony alone of his diagnosis and subjective impressions can support a finding of damages for emotional distress.6 See Spence v. Board of Education of Christina School District, 806 F.2d 1198, 1201 (3d Cir.1986).
VI.
47
SEPTA demonstrated important interests in the prescription information furnished by its supplier, and disclosed such information only to people with a right to know. This outweighs the minimal intrusion into Doe's privacy. The district court erred in its analysis of the Westinghouse factors, and should have granted defendant's motion for judgment under Rule 50.
48
Accordingly, the judgment of the district court will be reversed, and the matter will be remanded to the district court for entry of judgment for the defendants as a matter of law. Each side to bear its own costs.
49
GREENBERG, Circuit Judge, concurring.
50
Although I agree with Judge Rosenn's conclusions, I have a few reservations about his opinion that I note here.
51
First, regarding our standard of review: as Judge Rosenn indicates, after a jury verdict, the court cannot substitute its view of the evidence for that of the jury; accordingly, all evidence and inferences therefrom must be taken in the light most favorable to the verdict winner. See Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 691-92 (3d Cir.1993) (as amended on petition for rehearing). In addition, we have noted that a court of appeals in exercising plenary review over an order granting or denying a motion for judgment as a matter of law must apply the same standard as did the district court. Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir.1993); Lippay v. Christos, 996 F.2d 1490, 1496 (3d Cir.1993). We recently outlined the relevant standard:
52
In deciding whether to grant a motion for JNOV, the trial court must view the evidence in the light most favorable to the non-moving party, and determine whether the record contains the 'minimum quantum of evidence from which a jury might reasonably afford relief.' Keith v. Truck Stops Corp., 909 F.2d 743, 745 (3d Cir.1990) (citations omitted). The court may not weigh the evidence, determine the credibility of witnesses or substitute its version of the facts for that of the jury. Blair v. Manhattan Life Ins. Co., 692 F.2d 296, 300 (3d Cir.1982). The court may, however, enter judgment notwithstanding the verdict if upon review of the record, it can be said as a matter of law that the verdict is not supported by legally sufficient evidence. Neville Chem. Co. v. Union Carbide Corp., 422 F.2d 1205, 1210 (3d Cir.), cert. denied, 400 U.S. 826, 91 S.Ct. 51, 27 L.Ed.2d 55 (1970).
53
Parkway Garage, 5 F.3d at 691-92.
54
I join in Judge Rosenn's opinion because I believe that, even viewed in the light most favorable to Doe, the verdict winner in the district court, the facts of this case cannot, as a matter of law, support the jury's verdict. I support this holding because factors six and seven of the balancing test announced in United States v. Westinghouse Elec. Corp., 638 F.2d 570, 578 (3d Cir.1980), namely SEPTA's need for access to the prescription information and "whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating toward access," outweigh Doe's limited privacy interests in the information. It is here that, in my view, the district court in its opinion denying SEPTA's post-trial motions for judgment as a matter of law or for a new trial misapplied the Westinghouse balancing test. The court decided that, because Pierce "never articulated a need to know what Doe's medications were used for or a reason that she did not put the report aside or black out the names when she saw them," and because there was testimony that "the names of the individual employees were irrelevant to the issues they were examining," the jury reasonably could have found factor six to weigh in favor of a violation of Doe's privacy right. See Doe v. SEPTA, et al., No. 93-5988, slip op. at 19, 1995 WL 334290 (E.D.Pa. June 1, 1995). Likewise, because "the financial need to control prescription benefit costs ... does not include a need to have the names of employees linked with their medications, at least until an abuse of the benefit has been established," the district court decided that the jury also could have found factor seven to weigh in Doe's favor. See id. slip op. at 20.
55
However, the district court's emphasis on SEPTA's need to have the names of employees linked with their medications was misplaced. The focus of factors six and seven of the Westinghouse balancing test in this case should not be on appellants' need to have the names of employees linked with their medications, but instead should be on their need to have access to prescription utilization data in the first place. As Judge Rosenn's opinion notes, it is essential in this era of escalating health care costs that self-insured employers be able to review their benefits programs for proper usage, cost-cutting possibilities, and fraud and abuse, among other factors. Thus, I agree with his conclusions.
56
However, I do not believe that Judge Rosenn's opinion reflects the facts of the case in the light most favorable to Doe. For example, in describing Pierce's actions with respect to the Rite-Aid report, he states that she highlighted the names on the report whose medications she was unfamiliar with "for her research purposes," see majority opinion at 1139, and that she "discreetly never mentioned Doe by name" to Dr. Van de Beek. Id. at 5. Yet, Pierce's motivations for highlighting the names of the employees, in particular Doe's, was a primary factual issue in the case, as was her possible carelessness. Clearly, Doe did not claim that Pierce highlighted the names merely for her research purposes, nor would he have described her behavior as "discreet." The jury's verdict for Doe, then, might reflect its agreement with his assertions that her motivations, as well as her conduct, were improper. In any case, it does not seem that Judge Rosenn's opinion paints the issue in the light most favorable to a verdict for Doe. Although I regard this point as somewhat academic because of my analysis of the Westinghouse factors, it is worth noting because of our clear mandate to view the facts in the most favorable light to the verdict-winner in reviewing a denial of a motion for judgment as a matter of law.
57
More substantively, I do not agree with Judge Rosenn's analysis regarding Pierce's contact with Dr. Press. While it is true that Dr. Press did not acquire any new information from Pierce's actions, the focus of an inquiry into an alleged violation of the constitutional right to privacy should be on whether there was a disclosure. As an initial matter, Pierce showed Dr. Press the highlighted list containing Doe's name and prescription information. Pierce did not know whether Dr. Press had any prior knowledge regarding Doe's condition; nevertheless, she presented the information to Press. The constitutional right to privacy is intended to prevent certain disclosures. Thus, ordinarily individuals have the power to determine to whom they disclose their most personal matters. Here, Pierce impinged on Doe's right with the disclosure to Press in the same way that she did so with respect to the disclosure to Aufschauer. As Judge Rosenn's opinion states, "[a] disclosure occurs in the workplace each time private information is communicated to a new person...." Majority opinion at 1139.
58
Yet Doe himself already had informed Dr. Press voluntarily of his condition. Pierce's disclosure to Press, then, should not lead to Doe's recovery of damages, since the disclosure left Doe in the same position as before it occurred. This issue is one of damages alone, however, and does not affect the existence of a disclosure to Press. Thus, the court must weigh this disclosure as well as those involving Pierce and Aufschauer in order to determine whether a constitutional violation occurred. Accordingly, in my view it is not enough simply to state that because no damages were incurred there could not have been a violation of Doe's privacy right. In the end, though, the existence of a third disclosure in the case does not alter my analysis of the Westinghouse factors and therefore does not change my ultimate conclusion that we should reverse the judgment of the district court.
59
I also want to make a clear distinction between an impingement into privacy rights that is justified according to the Westinghouse factors, and an unconstitutional violation of the right to privacy. We have held that questions seeking personal medical information included in a police department questionnaire for use in selecting applicants for a special investigations unit "[did] not unconstitutionally impinge upon the applicants' privacy interests." Fraternal Order of Police v. Philadelphia, 812 F.2d 105, 114 (3d Cir.1987) (footnote omitted). We also have held that the strong public interest in facilitating the research and investigations of a government agency into a potentially hazardous work area "justif[ied] [the] minimal intrusion into the privacy which surrounds ... employees' medical records...." Westinghouse, 638 F.2d at 580. However, in neither case did we deny that an intrusion into privacy interests occurred. Likewise, here we do not deny that Pierce's disclosures impinged upon Doe's privacy interests in his prescription information. We do find, however, that the disclosures were justified according to the Westinghouse balancing test because of SEPTA's strong interest in having access to utilization review data from its prescription drug program. Thus, although there was an impingement into Doe's privacy rights, there was not here an unconstitutional violation of those rights.
60
Finally, regarding specific applications of the Westinghouse factors: Westinghouse factor four, "the injury from disclosure to the relationship in which the record was generated," would seem to me to apply to the relationship between Doe and SEPTA, not the relationship between Doe and Rite-Aid, as Judge Rosenn's opinion states. The relationship between Doe and his employer underlies the prescription benefits package in the first place; were it not for that benefits package, Doe would not have filled his prescription at Rite-Aid, nor would his name have been on the Rite-Aid report. In this regard, the injury from disclosure to "the relationship in which the record was generated" obviously could be much greater if the relevant relationship is that between Doe and his employer and not the Doe-Rite-Aid relationship. Thus, the factor may have weighed more heavily in favor of Doe in the jury's analysis than Judge Rosenn's opinion indicates. Nevertheless, because of my conclusions regarding Westinghouse factors six and seven, I still believe that Doe cannot recover for the disclosures made in this case.
61
Westinghouse factor five, "the adequacy of safeguards to prevent unauthorized disclosure," also could have weighed more heavily in favor of Doe in the jury's analysis than Judge Rosenn indicates. While it is true that Pierce and SEPTA did not request such information as would put them on notice that they would need to pre-arrange for its confidential handling, it would not have been unreasonable for the jury to conclude that SEPTA should have had some sort of policy regarding the confidentiality of employee medical information that would have put Pierce on notice of the sensitivity of the information she received. Moreover, it also would have been reasonable for the jury to expect Pierce to act more carefully with the information regardless of the existence of an official SEPTA policy, especially because of her high executive level in the company, in addition to her experience as a former government attorney. Thus, although factor five does not change my ultimate conclusion in the case, perhaps it weighed more heavily in favor of Doe, at least in the jury's consideration, than Judge Rosenn's opinion would suggest.
62
I make one final point. As Judge Rosenn notes, SEPTA did not request the names of its employees obtaining prescription drugs. Consequently, the case has been decided on the assumption that it did not need the names. Nevertheless, I do not understand that there is any legal impediment to an employer who pays for prescriptions or other benefits for employees and their dependents insisting on knowing the identity of the person obtaining the prescriptions or benefits. After all, an employer might need this information to determine whether the person obtaining the prescriptions or benefits was eligible for them. Judge Rosenn makes this important point, majority opinion n. 5, and I particularly want to emphasize it. In accordance with the foregoing comments, I join in Judge Rosenn's opinion with the caveats I have stated and join in the judgment of the court.
63
LEWIS, Circuit Judge, concurring and dissenting.
64
I agree with and join in that part of Judge Greenberg's concurring opinion which pertains to the first five Westinghouse elements. However, because I believe that there was more than a "minimum quantum" of evidence from which the jury in Doe's case could reasonably conclude that his constitutional right to privacy had been violated, I respectfully dissent. See Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 691 (3d Cir.1993).
65
Because my disagreement with the majority rests primarily with its analysis of the sixth and seventh Westinghouse factors, I will focus my discussion on those elements.
66
With respect to the sixth factor, which addresses the degree of need for access to the information, I note initially that at Doe's trial, Ms. Pierce, the SEPTA administrator responsible for auditing the company's health benefits plan, testified that for her purposes the employee names on the Rite-Aid printout were irrelevant. In fact, the district court specifically noted that "it was undisputed that the names on the report were unnecessary for Pierce's review of the Rite Aid report." (J. Yohn's Memorandum at 6, 16-17). While it is true that SEPTA could have legitimately requested these names for auditing purposes, the fact is that in this case it neither required nor requested such information.1 Thus, the jury had no factual basis upon which to conclude that SEPTA needed its employees' names in order effectively to audit its health plan.
67
I disagree that "[t]he focus of factors six and seven of the Westinghouse balancing test in this case should not be on appellant's need to have the names of employees linked with their medications, but instead should be on their need to have access to prescription utilization data in the first place." (Concurring Op. at 1144). First, I am aware of no authority which suggests that this broad approach is the correct way in which to frame the issue. Second, the jury's finding that Pierce had no need for the names on the Rite-Aid printout is not inconsistent with the principle that SEPTA may have had a legitimate need for access to prescription utilization data. Thus, because in my view the record clearly establishes that for purposes of auditing its prescription drug program with Rite-Aid, SEPTA did not necessarily need a printout that indicated by name what prescription drugs particular employees were taking, I cannot agree that the verdict was "not supported by legally sufficient evidence." As Judge Greenberg notes in his concurring opinion, the Parkway Garage standard requires the trial court, and us, to "view the evidence in the light most favorable to the non-moving party, and determine whether the record contains the 'minimum quantum of evidence from which a jury might reasonably afford relief.' Keith v. Truck Stops Corp., 909 F.2d 743, 745 (3d Cir.1990) (citations omitted)," and to avoid " 'weigh[ing] the evidence, determin[ing] the credibility of witnesses or substitut[ing] [our] version of the facts for that of the jury.' Blair v. Manhattan Life Insurance Co., 692 F.2d 296, 300 (3d Cir.1982)." (Concurring Op. at 1144). Accordingly, we must adhere to the Parkway Garage standard and allow the appropriate measure of deference to the jury's findings. For the above reasons, I do not believe that the majority has done so with regard to the sixth Westinghouse factor.
68
With respect to the seventh Westinghouse factor, I agree that there is an important public interest in allowing companies such as SEPTA, which administer their own health plans, to have access to the prescription drug records of their employees. (Maj.Op. at 1141). In general, I would agree that such employers have a legitimate need for this information. Nevertheless, I do not believe that this interest, standing alone, is sufficient to overcome the other Westinghouse factors, which in this case weigh largely in Doe's favor. Moreover, in my view, the majority places a disproportionate emphasis on factor seven, so much so that the remaining elements of the balancing test become practically irrelevant to its analysis. To my knowledge, we have never suggested that the seventh Westinghouse factor is the most significant consideration in our analysis. Accordingly, because under the highly deferential Parkway Garage standard there clearly is sufficient evidence in the record to support the jury's verdict in favor of Doe, once again I believe we are bound to affirm the district court's order.
69
Finally, I am concerned that the majority's decision on the issue of SEPTA's liability appears to be influenced, at least in part, by the fact that Doe was neither fired, harassed nor demoted. (See Maj.Op. at 1140 ("This potential for harm, however, should not blind us to the absence of harm in this case.")). I do not understand how or why this point is at all relevant to our legal analysis of the liability issue. In my view, the nature and extent of harm Doe suffered as a result of the disclosure that occurred is a damages rather than a liability issue. Moreover, as I understand the logic of the majority position, even if Doe had suffered a more direct harm in this case (say, for instance, on the job harassment), SEPTA's actions still would not have constituted a violation of Doe's limited privacy right against disclosure, because this right was outweighed by the strong public interest favoring SEPTA's access to prescription drug information for auditing purposes. Again, I disagree.
70
But I am particularly troubled by the potential implications of the majority's position. I hope I am wrong, but I predict that the court's decision in this case will make it far easier in the future for employers to disclose their employees' private medical information, obtained during an audit of the company's health benefits plan, and to escape constitutional liability for harassment or other harms suffered by their employees as a result of that disclosure.
71
For the above reasons, I respectfully concur and dissent.
1
SEPTA is a public transportation authority operating mass transportation facilities in the five-county Philadelphia metropolitan area. It operates subways, railroads, buses, and trackless trolleys and maintains stations, depots, and other installations. See Transport Workers' Local 234 v. SEPTA, 863 F.2d 1110, 1113 (3d Cir.1989). SEPTA receives much of its operating funds from state and federal subsidies. It is an agency of the Commonwealth of Pennsylvania. Id., at 1113. The parties agree that all actions taken by Pierce relevant to this matter were part of her job as a policy-maker at SEPTA. Therefore, Doe's suit is proper under Section 1983
2
Doe also filed a related suit against Rite-Aid and its employees in a Philadelphia Court of Common Pleas. That case was settled late in 1994, when Rite-Aid agreed to modify its billing procedures in the state of Pennsylvania in order to prevent these disclosures in the future. See 22 BNA Pension and Benefits Reporter 33 (Jan. 2, 1995)
3
This ruling is not before us, as it has not been appealed
4
We need not discuss in this case any possible violation on the part of Rite-Aid for preparing such a report. See supra, n. 2
5
There may be situations not before us now where an employer who pays for prescriptions or benefits for employees or their dependents may need to know the identity of a person obtaining the prescriptions or benefits. After all, an employer might need this information to determine whether the person obtaining the prescriptions or benefits was eligible for them, or if the person was even an employee. Of course, such need to know would have to comply with the employee's right of privacy as well
6
Plaintiff admits that he suffered no economic damages or physical injury from SEPTA's actions. He was not fired or demoted. Emotional distress, therefore, is Doe's only possible basis for recovery
1
The first Westinghouse factor is the "type of record requested." In this case, SEPTA did not request that the printout from Rite-Aid include employee names. As a result, I believe that this element of the balancing test does not weigh in Doe's favor | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1624687/ | 769 S.W.2d 757 (1989)
Tyrus L. MOZEE, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
Tyrus Lamar MOZEE, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
Nos. 87-SC-408-TRG, 87-SC-682-MR.
Supreme Court of Kentucky.
May 4, 1989.
Linda K. West, Assistant Public Advocate, Frankfort, for appellant.
Frederic J. Cowan, Atty. Gen., Robert W. Hensley, Asst. Atty. Gen., Frankfort, for appellee.
VANCE, Justice.
These two appeals were consolidated for hearing in this court, and each of them will be disposed of in this opinion.
APPEAL NO. 87-SC-408-TRG
Appellant was charged with complicity to commit murder and first-degree robbery. A jury found him guilty of the robbery and not guilty of the murder. He was sentenced to confinement for 12 years. We granted transfer to this court of Mozee's appeal to the Court of Appeals because there was already pending in this court a matter of right appeal by appellant's codefendant *758 below and the same transcript was necessary in each case.
The issues raised in this appeal are: (1) that appellant was entitled to a directed verdict of not guilty; (2) that appellant was not competent to be tried; (3) that appellant was not competent to be sentenced; and (4) that appellant was incapable of understanding the Miranda warnings and that his statement to police officers should have been suppressed.
The appellant presented evidence from psychiatrists and psychologists that he suffered from mild mental retardation, that he functioned on a day-to-day level of a six- to nine-year-old, that he was probably unable to understand the various Miranda rights when they were explained to him, and that he was probably unable to appreciate the nature and consequences of the proceedings against him or to participate rationally in his defense.
On the other hand, the psychiatrist who examined appellant approximately a year before his trial testified that he was, at that time, competent to stand trial. This psychiatrist examined appellant at a later time and noted an apparent deterioration in his mental condition which he was unable to explain. A psychologist testified that malingering on the part of the appellant should not be discounted as a reason for his seeming inability to comprehend.
More than one competency hearing was held, one of them jointly by the two trial judges who presided over these cases. On the basis of their observations of appellant at these hearings they concluded, "Few times has there been a defendant who better understood his attorney and better conducted himself at a court proceeding and cooperated with his attorney better than did this defendant, as he demonstrated at both the hearings held on his competency before these judges. He was fully cooperative with his attorney and responded in his own best interests and in an appropriate manner."
In addition, the appellant had been charged in certain disciplinary proceedings while he was incarcerated. He defended himself at those hearings, testified in his own behalf and examined witnesses. The hearing officer testified that appellant seemed to understand the procedures and conducted himself in the disciplinary hearings as well as the average prisoner.
The police detectives who took a statement from appellant after reading to him the Miranda rights, testified that he appeared to understand his rights and that he seemed to understand their questions. The statement he gave to the police was rational and did not indicate any lack of understanding or ability to communicate.
A trial court is not absolutely bound by the testimony of medical experts in making a determination as to competency to stand trial. A judge is also entitled to consider the testimony of laypersons and his own observations and impressions based upon the conduct and testimony of the accused at the hearing.
Appellant concedes that the burden of establishing incompetency should rest upon him. In cases where insanity is a defense, if there is any evidence of sanity, a factual issue is presented despite testimony of psychiatrists to the contrary. Wiseman v. Commonwealth, Ky., 587 S.W.2d 235 (1979); Hayes v. Commonwealth, Ky., 625 S.W.2d 583 (1982).
While the medical testimony in this case would certainly support a finding of incompetency to stand trial, the totality of the evidence did not require such a finding. The fact that one psychiatrist found appellant, though mildly retarded, competent to stand trial at an earlier examination, but exhibited a deteriorated mental condition at a later examination when there was no apparent reason for the deterioration, gives rise to a legitimate question of whether appellant, realizing the seriousness of the charges against him, deliberately sought to appear more retarded than he actually was. This was a possible explanation advanced by one psychologist who examined him.
The testimony of the corrections official that appellant was able to effectively defend himself in disciplinary proceedings with an understanding of the procedures at *759 least as good as the average prisoner, the transcript of appellant's statements to police officers which showed his ability to understand questions and to answer coherently, and the observations of the trial judges of the conduct of the appellant and his ability to cooperate with his attorneys, all tend to support the finding that appellant was competent to stand trial. There was no error in so ruling.
A question was raised at sentencing as to the appellant's competency to be sentenced. It was contended that new evidence as to his incompetency had been discovered subsequent to the hearing on his competency to stand trial. The new evidence was a report from a Dr. Johnson written for a competency hearing on another case, but based upon an examination performed well after the other evaluations of appellant by medical experts. On the basis of this report, appellant demanded that a further hearing be held regarding his competency to be sentenced.
Dr. Johnson's report was much the same as that of the other medical experts who had previously examined appellant. Dr. Johnson reported that appellant was mildly retarded, with an I.Q. between 50 and 70 and he, in effect, agreed with the previous testimony of medical experts that appellant had a poor understanding of the judicial process and poor communication skills to assist his attorney. The report of Dr. Johnson was merely cumulative. It did not indicate that any deterioration in appellant's mental condition had occurred between the time that appellant was found competent to stand trial and the time of sentencing. There is no right to a continual succession of competency hearings in the absence of some new factor. Pate v. Commonwealth, Ky., 769 S.W.2d 46 (1989). RCr 8.06 does not place on the trial judge a duty to hold hearing after hearing in the absence of some appearance of change in the defendant's condition since the ruling on competency. Pate, supra; Harston v. Commonwealth, Ky., 638 S.W.2d 700 (1982).
Because there was no demonstrated change in appellant's condition between the time he was determined to be competent to stand trial and the time of sentencing, we find no error in the determination that he was competent to be sentenced.
Appellant contends that he was entitled to a directed verdict of not guilty. There is no merit in this contention. The appellant's admissions and statements made to the police and the testimony of a female witness to the murder and robbery provided ample evidence upon which to submit the issue of appellant's guilt to the jury. Appellant sought to suppress the statement he gave to police officers on the ground that it was not knowingly and voluntarily given because his mental condition was such that he could not understand the Miranda warnings given to him. Based upon all of the evidence of record relating to appellant's mental condition, we hold the trial court did not err by failing to suppress appellant's statement.
APPEAL NO. 87-SC-682-MR
In this case, the appellant entered a conditional plea of guilty to murder, two counts of first-degree robbery, and receiving stolen property valued at more than $100.00. The murder and robbery were committed within days of the incident which resulted in appellant's conviction considered hereinabove. His guilty pleas were conditioned upon his right to appeal from a determination by the trial court that he was competent to enter a plea of guilty. The competency hearings in this case were held in conjunction with the competency hearings in appeal No. 87-SC-408-TRG discussed above. The testimony in each case is substantially the same, and the decision we reached in appeal No. 87-SC-408-TRG is dispositive here.
The judgments appealed from in appeal No. 87-SC-408-TRG and appeal NO. 87-SC-682-MR are each affirmed.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624724/ | 769 S.W.2d 46 (1989)
Ronald Clay PATE, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
No. 88-SC-68-MR.
Supreme Court of Kentucky.
May 4, 1989.
*47 Rodney McDaniel, Asst. Public Advocate, Dept. of Public Advocacy, Frankfort, for appellant.
Frederic J. Cowan, Atty. Gen., Lana Grandon, Asst. Atty. Gen., Frankfort, for appellee.
WINTERSHEIMER, Justice.
This appeal is from a judgment which convicted Pate of first-degree sodomy and three counts of first-degree sexual abuse. He was sentenced to a total of 20 years in prison.
The principal issue is whether it was error for the trial judge to refuse to hold a second competency hearing prior to Pate's sentencing.
A competency hearing was held October 19, 1987, and the trial judge determined that Pate was competent to stand trial which was held without a jury on January 12, 1988. On January 13, the prosecutor filed a motion to have Pate examined before final sentencing to determine if he was competent. The trial judge stated that he had already found the defendant competent to stand trial and that unless there was some proof to the contrary, he was competent for sentencing. The sentence and final judgment were entered January 13. This appeal followed.
The trial judge properly refused to hold a second competency hearing prior to sentencing.
A hearing for the purpose of determining mental capacity is required only when there are reasonable grounds to believe that the defendant is not mentally competent. The reasonable grounds for such belief must be called to the attention of the trial judge by the defendant or must be so obvious that the trial judge cannot fail to be aware of them. Matthews v. Commonwealth, Ky., 468 S.W.2d 313 (1971).
There is no right to a continual succession of competency hearings in the absence of some new factor. RCr 8.06 does not place on the trial judge a duty to hold hearing after hearing in the absence of some appearance of change in the defendant's condition since the ruling on competency. Harston v. Commonwealth, Ky., 638 S.W.2d 700 (1982).
Pate's argument that there is additional evidence as to his competency which required the trial judge to conduct a second competency hearing is unconvincing. The testimony of the psychiatrist that Pate suffered from schizophrenia and was mildly retarded and defense counsel's statement that she could not communicate with the defendant as well as Pate's testimony that he did not remember confessing to the crimes was not sufficient to require the trial judge to hold a second competency hearing prior to sentencing.
Pate has not demonstrated a new factor or the appearance of change in his condition which would require the trial judge to hold a second competency hearing either during trial or before sentencing. The trial judge had an ample opportunity to observe the defendant during the competency hearing and during the trial. A review of the record indicates that Pate's behavior remained the same throughout the proceedings. The question is competency to stand *48 trial. Dr. Nasser, who testified at trial, was unable to find Pate legally insane although he suffered from mental illness. Dr. Schremly, who testified at a competency hearing, said Pate was competent for trial. A careful review of the testimony by the psychologists and the circumstances of the case show they were not sufficient to require the trial judge to hold a competency hearing pursuant to RCr 8.06 during the trial or prior to sentencing.
The standard for legal competency for sentencing is set out in Moody v. Commonwealth, Ky.App., 698 S.W.2d 530 (1985), to be "that a convicted defendant who, due to his or her mental condition is unable to appreciate the nature and consequences of his or her sentencing proceeding may not be sentenced until such time as he or she is competent to do so." Id. at 532. There was no evidence produced by Pate during the proceeding, subsequent to the initial determination of competency to stand trial, which demonstrated that he was unable to appreciate the nature and consequences of his sentencing proceeding and to participate rationally in the proceedings. Absent such a showing, the fact that a defendant is mentally ill, as distinguished from incompetent, at the time of the offense or at the time of sentencing does not require a competency hearing be held before sentencing.
The determination by the trial court that Pate was competent was based on substantial evidence. There was no appearance of change in the defendant's condition or behavior at trial which would require the trial judge to hold an additional competency hearing. The trial and sentencing were conducted within a two-day span. The trial judge did not commit reversible error in refusing to hold a second competency hearing prior to sentencing.
The other issue raised on appeal as to whether Pate voluntarily, knowingly and intelligently waived his right to a jury trial was not properly preserved for appellate review. RCr 9.22.
The judgment of conviction is affirmed.
All concur, except COMBS, J., who dissents by separate opinion.
COMBS, Justice, dissenting.
I respectfully dissent. Appellant has been convicted of heinous offenses but this does not deprive him of equal protection of the laws. He has an IQ of 70, and has been characterized as mildly retarded. Two psychiatrists have examined him and filed reports. Though they found him competent to stand trial they placed his intelligence in the borderline category, and felt that he was approaching schizophrenia.
Dr. Schremly reported that though he was "probably competent to stand trial at this time ... it is this examiner's judgment that at best this would be a marginal ability and testing for competency to stand trial is not intended to be predictive in nature nor is there attached a temporal stability, that is, the patient could change for better or worse in a short period of time."
Appellant's counsel informed the court that she had been unable to communicate with him throughout the proceedings and she did not believe that he knew what was going on. Even the Commonwealth Attorney did not believe appellant competent to be sentenced and requested another evaluation, which was denied.
It appears that the sentencing procedure was quite brief, consuming only forty seconds. Even during this brief period the court had difficulty communicating with appellant, but nevertheless accepted his waiver of jury trial. The waiver was not in writing, was not approved by the court, and did not have the consent of the Commonwealth, as is required by RCr 9.26(1).
The majority has characterized the failure to conduct another competency proceeding as the principle issue. I disagree. RCr 9.26(1) is purely a practice and procedural rule of this Court. The people of this Commonwealth on January 1, 1976 by its judicial amendment, and specifically § 116, gave this Court the power to enact that rule. That being the case, it is binding upon all of us. We cannot ignore the laws and expect the public to obey them. This is especially true of the law enacted by this Court.
*49 The Commonwealth argues that the defendant clearly waived his right to jury trial. In view of the circumstances I seriously doubt their assertion, but be that as it may, the rules specifically require that the waiver be in writing and concurred in by all three parties the accused, the court and the Commonwealth. None of these features are present here.
Furthermore, under the circumstances and particularly in view of the request of the Commonwealth Attorney, I think the court erred in failing to conduct another competency hearing prior to trial.
For these reasons, I would reverse and remand for a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624714/ | 522 So. 2d 306 (1988)
Claude Eugene GROSS
v.
Shelby LOEWEN.
Civ. 6186.
Court of Civil Appeals of Alabama.
March 2, 1988.
*307 Thomas M. Galloway, Jr., of Collins, Galloway & Smith, Mobile, for appellant.
William Prendergast and Lois Brasfield, Asst. Attys. Gen., for appellee.
HOLMES, Judge.
This appeal arises from the trial court's denial of defendant's motion for relief from judgment.
The dispositive issue is whether the wife's affidavit alleging avoidance of service by the non-resident ex-spouse was sufficient to warrant service by publication.
The trial court permitted service by publication and, as a result of the hearing at which the husband was not present, increased the husband's child support obligation from $70 to $500 per month. At the time of that child support modification order in 1981, the husband was then in arrears on his child support obligation in the amount of approximately $1,400. In 1987 the husband filed a motion for relief from the 1981 judgment. The husband apparently filed his motion at that time in response to collection efforts made by the Internal Revenue Service on the child support arrearages which had accumulated since 1981.
After a hearing on the husband's motion, the trial court denied that motion for relief from the 1981 child support modification order. The husband appeals. We reverse and remand.
The husband contends that he was not properly served in this case and that such a failure of service deprived the trial court of jurisdiction and rendered its 1981 order void. Specifically, he contends that service by publication in this case failed to comply with the requirements of Rule 4.3(d)(1), Alabama Rules of Civil Procedure, and was, therefore, ineffective. We agree.
Rule 4.3(d)(1) provides in pertinent part as follows:
"(1) Affidavit Necessary. Before service by publication can be made in an action where the ... defendant avoids service, an affidavit of a party or his counsel must be filed with the court averring that service of summons or other process cannot be made because ... the defendant avoids service, averring facts showing such avoidance."
The trial court permitted the wife to serve the husband by publication based upon an affidavit which reads in pertinent part as follows:
"Personally appeared before me, the undersigned authority in and for said State and County, Shelby Gross Lo[e]wen, who being by me first duly sworn, doth depose and say that she is the complainant in the above entitled cause, that she and the respondent, Claude Eugene Gross, are each over twenty-one years of age, and that he is a non-resident of the State of Alabama, and resides at 140 Windward Lane, Roswell, Georgia 30077. However, the defendant is avoiding service, as service attempted by certified mail was returned undelivered." (Emphasis supplied.)
The dispositive question thus becomes whether the wife's statement that, "the defendant is avoiding service, as service attempted by certified mail was returned undelivered," meets the Rule 4.3(d)(1) requirement that "facts showing such avoidance" be averred in the affidavit. (Emphasis supplied.)
In Richardson v. Arrington, 431 So. 2d 1301, 1302 (Ala.Civ.App.1983), we stated the following:
*308 "Under Rule 4.3(d)(1), if service by publication is made necessary because the defendant has avoided service, an affidavit must be made alleging that defendant avoids service and averring facts showing such avoidance. Failure to comply with the requirements of Rule 4.3(d)(1) in the averments of the affidavit renders service by publication ineffective. Miles v. McClung, 385 So. 2d 1326 (Ala.Civ.App.1980)."
In Miles v. McClung, 385 So. 2d 1326, 1327 (Ala.Civ.App.1980), we noted that
"The Committee Comments to Rule 4.3 clearly indicate that in a case such as this service by publication is to be allowed only when there is an `element of culpability on the part of the defendant.' Moreover, `More than mere inability to find the defendant is required because of the use of the term "avoidance" of service.'"
Recently, Professor Jerome Hoffman made the following pertinent observations with respect to the issue at bar:
"b. Avoids serviceA party moving for service by publication must show affirmatively, by affidavit or otherwise, that the party to be served `avoids service.' The showing must go beyond mere conclusory assertions of the affiant, deponent or witness by `averring facts showing such avoidance.' Rule 4.3(d)(1), ult. clause. Avoidance means that `[m]ore than mere inability to find the defendant is required'; the moving party must show an `element of culpability on the part of the defendant.' Rule 4.3, committee comments. See also Richardson v. Arrington (431 So. 2d 1301 (Ala.Civ.App.1983)). And one court has said that `the draftsmen [of rule 4.3] required proof of "culpability" or a "hiding out" by a defendant before ... in personam judgment can be entered on service by publication.' Federal Deposit Ins. Corp. v. Sims, 100 F.R.D. 792, 796 (N.D.Ala.1984). The trial court must make a finding of avoidance upon the moving party's showing. Without such a showing and finding, an in personam judgment obtained by default and solely upon service by publication is void. Miles v. McClung, 385 So. 2d 1326 (Ala. Civ.App.1980)."
Hoffman, Service by Publication under Rule 4.3, 49 Ala.Law. 20 (1988) (emphasis supplied).
From the face of the affidavit in this case, we cannot determine upon what facts the allegation was based that could lead to a conclusion that the husband was "avoiding service." The affidavit does not recite any facts which would suggest that the husband was attempting to avoid personal service such that service by publication would be proper.
It is true that our supreme court has heretofore stated that "a failure to claim mail may, in some instances, be construed as an avoidance of service." Marshall v. Mid-State Homes, Inc., 468 So. 2d 131, 132 (Ala.1985). Such a failure to claim mail, however, is but one factor which could be considered with others set out in the affidavit in concluding that a defendant was avoiding service. The supreme court recently held that the return of an unclaimed certified letter is not sufficient to warrant service by publication. See March v. Stringer, 518 So. 2d 65 (Ala.1987).
We cannot hold, under the facts of this case, that the conclusory statement that the husband was avoiding service, based upon the return of an unclaimed certified letter, is sufficient to satisfy the requirement of Rule 4.3(d)(1), such that service by publication would be proper.
We, therefore, reverse and remand as to this issue for entry of a judgment consistent with this opinion.
Although it is not dispositive in view of the above, the husband also raises another issue which we feel is necessary to address.
The issue is raised as to whether publication is available as a means of serving a nonresident defendant in the context of domestic relations cases such as the one at bar.
In Braley v. Horton, 432 So. 2d 463 (Ala. 1983), it was held that personal jurisdiction may not be obtained over a nonresident *309 defendant through the means of service by publication.
Braley is not, however, a domestic relations modification case. That case does not address, therefore, the question of whether the fact of a court's having continuing jurisdiction over an appropriate domestic relations case should lead to a different result than that reached in Braley with respect to service of nonresident defendants by publication.
We believe that Campbell v. Campbell, 357 So. 2d 129, 131 (Miss.1978), correctly and exhaustively analyzes this issue. In concluding that nonresident defendants may be served by publication in child support modification cases, the Supreme Court of Mississippi made the following pertinent observations:
"Examination of other authorities and decisions from other states reveal that the great weight of authority supports the conclusion that where a proceeding for modification of a personal decree of alimony or child support in a matrimonial action is permissible as a mere continuation of the original proceeding in which the award was rendered, as against a party who has since become a non-resident and over whom the court had personal jurisdiction in the original proceeding, the court's power to modify the award may be exercised upon reasonable notice, including constructive notice, other than personal service of process within the court's jurisdiction. According to 24 Am.Jur.2d Divorce and Separation, § 852, pp. 966, 967 (1966):
"`A proceeding to modify or terminate an order for child support is not an independent proceeding but is supplementary to, or a continuation of, the original divorce action. Thus, an application to increase payments for the support of a child should be made by a motion filed in the original divorce action.
"`It is not necessary to serve process upon the father within the jurisdiction of the court in order to modify a decree for child support, where the proceeding for modification is a mere continuation of the divorce action; the court may proceed after reasonable notice is given, even though the father is a nonresident. Of course, the father is entitled to notice of an application to increase payments, and the mother, if she has custody of the child, is entitled to notice of an application to reduce or terminate payments. The manner in which a party is to be notified is governed in some jurisdictions by statute; but in the absence of such a statute any reasonable notice is sufficient.'" See also 62 A.L.R. 2d 544, 546 (1958).
As we stated in Brown v. Brown, 476 So. 2d 114, 115-16 (Ala.Civ.App.1985), "[i]t has long been the rule in Alabama that, if a divorce decree provides for a child's support, the trial court, at any time thereafter and without an original reservation of power to do so, may modify that aspect of the decree to meet a change of conditions." This is so, since "[a] proceeding to modify or terminate a child support order is not an independent action, [but] ... a continuation of or ... supplementary to the original divorce action." Brown, 476 So.2d at 116.
Section 30-3-25(a)(4), Ala.Code (1975) (1983 Repl.Vol.), the Uniform Child Custody Jurisdiction Act, provides as follows:
"(a) Notice required for the exercise of jurisdiction over a person outside this state shall be given in a manner reasonably calculated to give actual notice, and may be:
". . .
"(4) As directed by the court, including publication, if other means of notification are ineffective."
While it is true that we have held that the Uniform Child Custody Jurisdiction Act has no "direct" application to a child support modification case, Brown, 476 So.2d at 116, we believe that § 30-3-25(a)(4) is persuasive authority for service of non-resident defendants by publication in cases such as the one at bar.
Among the purposes of the Uniform Child Custody Jurisdiction Act are the promotion of stable home environments and the facilitation of the enforcement of custody *310 decrees. Ala.Code (1975), § 30-3-21. Surely, there are similar reasons for facilitating the enforcement of child support modification orders through service of nonresident defendants by publication in cases such as the one at bar.
In a Mississippi case decided subsequently to Campbell, 357 So. 2d 129, the supreme court noted the following:
"The appellee wants us to distinguish between those cases involving a petition to modify child support and those involving petitions to modify child custody, but we can see no logical distinction that would alter the ruling in Campbell involving the court's jurisdiction."
Bradshaw v. Bradshaw, 418 So. 2d 64, 65 (Miss.1982). We would add that we can see no logical distinction for providing in Alabama for service by publication in child custody modification cases but not in child support modification cases.
This case is due to be reversed and remanded for entry of a judgment consistent with this opinion.
REVERSED AND REMANDED.
INGRAM, J., concurs.
BRADLEY, P.J., concurs specially.
BRADLEY, Presiding Judge, concurring specially:
I agree that the judgment of the trial court must be reversed, but I disagree with that portion of the opinion which holds that an in personam judgment can be based on service by publication on a nonresident defendant.
My examination of the interaction between A.R.Civ.P. 4.2 and 4.3 leads me to the conclusion that publication is not an available alternative for acquiring service over a nonresident defendant.
Supportive of my view is an article by Professor Jerome Hoffman in the January 1988 issue of the Alabama Lawyer. In this article Professor Hoffman says:
"An in personam judgment is one (usually for money damages) that the sheriff can execute against the defendant or one that subjects the defendant to the court's contempt power. Rule 4.3(a)(2), ult. sent., provides: `In no event shall an in personam judgment be entered on service by publication except as provided in subparagraph (c) of this rule.'...
". . .
"... If, upon service by publication, a non-resident appears and defends, an in personam judgment rendered against him will, of course, be valid. But an in personam judgment obtained by default against a nonresident defendant is void if based solely upon service by publication. Braley v. Horton, 432 So. 2d 463 (Ala. 1983). A party moving for service by publication must show affirmatively, by affidavit or otherwise, that the party to be served is a resident of Alabama, and the trial court must make a finding of residency upon that showing. Id. at 466.
"On its face, Rule 4.2(b)(1)(C) seems to contradict the proposition that in personam judgments can be obtained by publication only against resident defendants. The rule provides that out-of-state service by certified mail `shall be deemed to confer in personam jurisdiction.' Rule 4.2(b), lines 5 & 6. The provision is not limited on its face to out-of-state service upon Alabama residents; indeed, one supposes that the principal utility of Rule 4.2(b) is to be found in its application to nonresidents. Rule 4.2(b)(1)(C) then provides:
"`... In the event that the return receipt shows failure of delivery, service is complete when the serving party... files with the clerk an affidavit setting forth facts indicating the reasonable diligence utilized to ascertain the whereabouts of the party to be served, and service by publication is made under Rule 4.3(c).'
"Ult. sent., emphasis addedHere, also, the provision is not limited on its face to out-of-state service upon Alabama residents and, read only with the provision `shall be deemed to confer in personam jurisdiction' and not with the related provisions of Rule 4.3(a)(2) and 4.3(c), would seem quite clearly to authorize in personam judgments obtained by publication *311 against defendants not residents of Alabama. Rule 4.2 must be read with Rule 4.3, however, and the proscription set forth in Rule 4.3(a)(2), ult. sent., is plain: `In no event shall an in personam judgment be entered on service by publication except as provided in subparagraph (c) of this rule,' which then limits in personam effect to judgments obtained against resident defendants.... Thus, it seems reasonable to suppose that Rule 4.3 was intended to control on this matter and that only resident defendants are subject to in personam judgments obtained by publication under any circumstances."
Hoffman, Service by Publication under Rule 4.3, 49 Ala.Law. 18 (1988) (emphasis added).
Additionally, in Braley v. Horton, 432 So. 2d 463 (Ala.1983), our supreme court remanded a case to the trial court with specific instructions to determine whether a defendant, who was served by publication, was a resident or nonresident of Alabama. The court pointed out that A.R.Civ. P. 4.3 "authorizes service [by publication] on resident defendants; therefore, whether the defendant was a resident or nonresident defendant is critical." Braley.
Upon remand, the trial court in Braley determined that the defendant was a nonresident of Alabama. Pursuant to this finding, the court held:
"Consequently, the notice of service by publication, pursuant to Rule 4.3(d), ARCP, was not sufficient for the circuit court to acquire jurisdiction of the person. ..."
Braley.
Similarly, it is this failure to acquire personal jurisdiction over Mr. Gross that renders the judgment against him void. I recognize that our trial courts, after entering divorce decrees, possess continuing jurisdiction over questions of child support. Brown v. Brown, 476 So. 2d 114 (Ala.Civ. App.1985). However, this continuing jurisdiction is continuing subject matter jurisdiction. Brown. Personal jurisdiction is a separate question, and without such jurisdiction the court is powerless. Wells v. Wells, 376 So. 2d 750 (Ala.Civ.App.1979).
In view of my interpretation of Rules 4.2 and 4.3, as well as the supreme court's holding in Braley, I cannot find that substituted servicespecifically, service by publicationprovides a mechanism for acquiring personal jurisdiction over a nonresident defendant in an in personam proceeding. In the present case the trial court found the defendant to be in arrears in his child support payments and then modified the child support decree by increasing payments from $70 per month to $500 per month, and this judgment is based on notice by publication. A state court's ability to enter an in personam judgment against a defendant is limited by the due process clause of the fourteenth amendment. Alabama Waterproofing Co. v. Hanby, 431 So. 2d 141 (Ala.1983). I believe that acquiring service in this manner oversteps the limits of constitutional due process. See, Alabama Power Co. v. VSL Corp., 448 So. 2d 327 (Ala.1984). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624719/ | 769 S.W.2d 249 (1988)
Jean Marie ST. GELAIS, Transoil Rig Equipment, Inc., Standard Systems & Technology, Inc., and International Equipment & Financial Services, Ltd., Appellants,
v.
Ocie JACKSON and Jerry Dowdy, Appellees.
No. C14-87-00039-CV.
Court of Appeals of Texas, Houston (14th Dist.).
November 17, 1988.
Rehearings Denied February 9 and March 16, 1989.
*251 Roy L. Cordes, Jr., Ben W. Childers, Sugar Land, Anthony J. Sadberry, Paul R. Duplechain, Phillip R. Livingston, Houston, for appellants.
B. Edward Williamson, Michael J. Mazzone, Houston, for appellees.
Before JUNELL, SEARS and DRAUGHN, JJ.
OPINION
JUNELL, Justice.
Three groups of appellants challenge a judgment awarding appellees Ocie Jackson and Jerry Dowdy actual and punitive damages, attorneys fees and interest.
Appellants Jean Marie St. Gelais and Transoil Rig Equipment, Inc., bring 33 points of error. Appellant Standard Systems & Technology, Inc., brings 15 points of error. Many of these points are similar and will be discussed together. Appellant International Equipment & Financial Services, Ltd., against whom a default judgment was entered for failure to answer, brings two points of error alleging (1) that the trial court abused its discretion in denying International's motion for new trial because substituted service was improper and (2) that the evidence was insufficient to support the damages adjudged against it.
We first address International's contentions. International, a foreign corporation, was served with notice of this suit through the Secretary of State under the provisions of the Texas long arm statute, V.A.T.S. art. 2031b(3), now § 17.041 et seq. of the Texas Civil Practice and Remedies Code. In its motion for new trial, International challenged the sufficiency of plaintiffs' pleadings that it was "doing business" in Texas within the meaning of the statute. However, it made no proof in the trial court of the allegations raised in its motion. Therefore the record before us fails to dispute plaintiffs' jurisdictional pleadings which, on their face, are sufficient to support the substituted service.
International's motion for new trial also contends that its ownership of real property in Texas does not constitute sufficient contacts to support in personam jurisdiction. In direct contradiction to that position, International now asserts that it does do business in Texas and further claims that it maintains a "regular place of business" here by virtue of its ownership of that same real property, a condominium unit in a high-rise building. It then attacks the propriety of substituted service under section three of art. 2031b, alleging that the on-premises manager of the condominium should have been served under section two of the statute. By its failure to raise this argument in its motion for new trial, International has failed to preserve this complaint for review by the appellate courts. Rule 52(a), Tex.R.App.P. The default judgment rendered against it on the plaintiffs' pleadings was proper. This judgment, which was merged into the final judgment, specifically imposes a constructive trust on the real property bought by St. Gelais in International's name, grants plaintiffs an equitable lien on the property, forecloses that lien and orders the property sold and the proceeds applied to reduce the judgment after payment of all costs of the sale. The trial court's judgment in this regard is affirmed.
International's second point of error contests the sufficiency of the evidence to support an award of money damages against it. International's liability for civil conspiracy was determined by default. A default judgment against St. Gelais also established International's status as his alter ego. International was then held jointly and severally liable with the other defendants for the actual damages awarded to the plaintiffs. There were no findings of exemplary or additional damages sought against International and none were adjudged. We find that by virtue of the default judgments rendered in the case, the *252 actual damages proved at trial were sufficient to support judgment against International for actual damages. International's liability as to conspiracy was already established by default. The jury found the remaining defendants also liable on the conspiracy theories and awarded actual damages caused by the civil conspiracy. Having proven the damages as the conspiracy itself, plaintiffs were not obigated to prove the same damages separately against International. The judgment against International is affirmed.
A rather detailed summary of pretrial proceedings is necessary to adequately discuss several points of error raised by St. Gelais, Transoil and Standard Systems attacking the trial court's rulings on pre-trial motions. A summary of evidence presented at trial will come later in this opinion.
Appellees filed plaintiffs' original petition in early September 1984 and a Third Amended Original Petition October 4, 1985, naming seven defendants. All of the corporate defendants were directly or indirectly related to defendant St. Gelais. St. Gelais was the sole owner and officer of defendant Transoil Rig Equipment, Inc. (Transoil). Transoil owned 100 percent of the stock of defendant Hemisphere Investment Corp. (Hemisphere). Hemisphere and others purchased all of the capital stock of defendant Standard Drilling Co. (Standard Drilling) December 1, 1982. Appellees contend this purchase was financed by St. Gelais. In April 1983 defendant Standard Systems & Technology, Inc., (Standard Systems) acquired substantially all of Standard Drilling's assets and liabilities through an exchange of stock and a reverse stock split.
Appellees sought to hold the defendants liable for damages for fraud, deceptive trade practices, breach of lease contracts, and conspiracy. They also alleged liability under theories of de facto merger and alter ego that allow setting aside the corporate form of business entities. Appellees alleged that St. Gelais used proceeds of the fraud to acquire the condominium in Houston in International's name and sought imposition of a constructive trust on that property.
On October 28, 1985, the trial court signed an order granting appellees an interlocutory default judgment on liability against St. Gelais and Hemisphere as a sanction for repeated discovery abuse. While contesting certain related procedural rulings by the court, St. Gelais does not directly challenge the validity of the default judgment.
In December 1985, two severances occurred. The suit against Standard Drilling was severed into Cause No. 84-23843-A (the "A" case) because Standard Drilling was then in bankruptcy. St. Gelais and Hemisphere were severed into Cause No. 84-23843-B (the "B" case) so that a trial on damages could proceed against them. St. Gelais and Hemisphere opposed the severance.
On Monday February 24, 1986, the "B" case came up for trial on damages. At that hearing defendants St. Gelais and Hemisphere moved for continuance for two reasons: (1) they had requested a jury but a non-jury trial had been set and (2) Standard Drilling had the previous Friday filed a petition seeking to have the entire case removed to federal bankruptcy court in Oklahoma. The trial court granted the continuance and ordered that upon resolution of the removal issue and upon motion by either side, the matter of damages would be tried as soon as possible before a jury. The court, on its own motion, also found that defendants Hemisphere and St. Gelais and their attorney had again abused the Texas civil justice system and imposed monetary sanctions against all three in the amount of $17,050.
According to docket sheet entries, on June 24, 1986 a pre-trial conference was held and the "B" case against St. Gelais and Hemisphere (for damages only) was preferentially set for trial. The docket sheet does not indicate the trial date. Appellees contend that the trial date was later set for the week of August 25, 1986 and that notice of the setting was mailed by the clerk's office before July 24. A copy of the notice is not in our record.
On July 18, 1986, the attorney for St. Gelais and Hemisphere moved to withdraw *253 as counsel on grounds of a conflict of interest because his clients refused to pay the $17,050 sanction, refused to indemnify him for the sanctions judgment, and refused to pay his fees. He alleged that his withdrawal was mandatory since he might, in his own defense on the sanctions matter, be forced to reveal privileged information. He also alleged that he had requested his clients' consent to his withdrawal which had been refused. His motion was granted July 30, 1986, almost one month prior to trial.
On July 28, 1986, the same attorney moved to withdraw from representation of defendants Transoil and Standard Systems in the main case (No. 84-23843) and set the motion for hearing August 11, 1986. On August 6, 1986, plaintiffs moved to certify the main case for trial and to consolidate it with the "B" case for trial purposes only. Both motions were granted at the hearing August 11, 1986. The attorney for Transoil and Standard Systems was allowed to withdraw and the consolidated cases were set for trial the week of August 25, 1986. Docket call was set for August 22.
On August 20, 1986, one week prior to trial, Ben W. Childers and Roy L. Cordes, Jr., new attorneys for St. Gelais, Transoil, Standard Systems, and Hemisphere, filed motions for continuance in both the "B" case and the main case. The sworn motions stated that on August 12 the clients had received a letter notifying them of withdrawal of prior counsel and on August 19, 1986 the new attorneys had agreed to represent the four defendants. Apparently separate counsel for St. Gelais and Transoil was engaged sometime after August 20, 1986 because another attorney appeared on behalf of these defendants on August 27.
On August 26, 1986, plaintiffs learned that Hemisphere was planning to file bankruptcy. On their motion, the court consolidated the actions against St. Gelais with the main case for trial purposes, leaving Hemisphere as the sole defendant in the "B" case, so that Hemisphere's automatic bankruptcy stay would not affect the suit against St. Gelais. Hemisphere did file bankruptcy the morning of August 27.
The main case, now with St. Gelais, Transoil, Standard Systems, International and Erling Larsen as defendants, was called for trial August 27, 1986. The entire morning of August 27 was devoted to hearing the defendants' motions, including the August 20 motion to continue. All the motions were denied. On August 28, 1986, default judgments against defendants Erling Larsen and International were granted for failure to answer and jury selection began.
The granting or denial of a motion for continuance is within the trial court's sound discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986); State v. Crank, 666 S.W.2d 91, 94 (Tex.1984). The trial court's action will not be disturbed unless the record discloses a clear abuse of discretion. Id. When the ground for the continuance is the withdrawal of counsel, movants must show that the failure to be represented at trial was not due to their own fault or negligence. State v. Crank, at 94; Villegas at 626.
Appellants contend that by allowing their attorney to withdraw shortly before trial and then refusing to grant a continuance, the trial court did abuse its discretion. We do not agree.
The situation in Villegas is distinguishable from the circumstances of the case before us. Villegas' attorney was permitted to withdraw only two days prior to trial and when he appeared for trial two days later, Villegas was unrepresented by counsel. There was no evidence in the record that Villegas' actions had caused his attorney to withdraw. In fact, the appellate court affirmatively found that "Villegas was not negligent or at fault in causing his attorney's withdrawal." He had learned of the request to withdraw only six days before trial and had contacted another attorney to represent him right away. However, after obtaining the court's permission to withdraw, his first counsel refused to turn over Villegas' file and important evidence to the attorney Villegas had attempted to retain in his place. Rather than grant a continuance under these circumstances, the court proceeded to trial with *254 Villegas pro se. This action was held to be an abuse of discretion.
In the case before us, the conduct of the defendants in refusing to pay the sanctions or indemnify counsel clearly was instrumental in the attorney's decision to withdraw from the case. The procedural history of the case indicates a pattern of obstructionist tactics on the part of St. Gelais and Hemisphere. One motion for continuance had already been granted in favor of those defendants. Two bankruptcies were filed by corporations deemed to be the alter ego of St. Gelais, and, in conjunction with one, defendants improperly sought removal of the entire case to Oklahoma. Most significantly, the trial court had twice imposed severe sanctions against St. Gelais and Hemisphere for their continuing abuse of the judicial system. Following judgment, the court held St. Gelais, Standard Systems and Transoil in contempt for their refusal to comply with the court's post-judgment orders. This record, taken as a whole, indicates that the fault of the defendants was instrumental in the withdrawal of their counsel.
In addition, the time frames involved were not nearly so crucial as those in Villegas. The case was set for trial the week of August 27, 1986. The attorney for St. Gelais and Hemisphere moved to withdraw on July 18, 1986. In that sworn motion he stated that he had sought but was denied permission from his clients to withdraw. Therefore, we may presume that the client had knowledge of the attorney's intentions prior to July 18. The motion was granted on July 30, 1986, almost one month before the trial date. While St. Gelais claims not to have received actual notice of the granting of the motion until August 12, he was aware of the possibility of that event considerably sooner. We believe that the exercise of true diligence would have included some attempt on the client's part to obtain such vital information sooner. Finally, new counsel was retained at least a week before trial. Unlike Villegas, defendants were not pro se when the case was called.
We therefore hold that appellants have failed to demonstrate an abuse of discretion by the trial court in the denial of their motion. Points of error one and two brought by Standard Systems and point of error three brought by St. Gelais and Transoil are overruled.
We next consider several points of error brought by St. Gelais which revolve around the fact that plaintiffs had obtained a default judgment "as to liability" against him as a sanction for discovery abuse. After entering judgment by default, the court ordered "that Plaintiffs have and recover of and from Defendant Jean Marie St. Gelais such relief and damages as may be proved upon the final trial of this cause."
In his first point of error St. Gelais contends that the trial court erred in failing to set aside the interlocutory default judgment against him. It is his contention that he was somehow prejudiced by the fact that, while keeping the default judgment in place, the trial court permitted plaintiffs to submit to the jury evidence of and issues on liability. However, appellant neither cites relevant authority nor demonstrates how he was harmed by this situation. While he claims that by virtue of the default he was prevented from presenting a defense to liability, he includes no record references indicating that his counsel was denied the opportunity to cross-examine witnesses, contest admissibility of evidence, or present evidence on his behalf. To avoid prejudice, the jury was not informed about the default judgment. Appellant St. Gelais therefore has not shown harm.
St. Gelais also argues that appellees waived the default judgment when they included issues in the charge asking the jury to find whether St. Gelais was liable under the various causes of action pleaded and presented. We disagree. At the charge conference counsel for appellees stated that they were not waiving the interlocutory default judgment by submitting issues relating to St. Gelais. The trial court implicitly accepted this reservation of rights. We explicitly accept it. If, on appeal, St. Gelais had successfully contested the validity of the interlocutory default judgment, appellees would have had to relitigate *255 both liability and damages at a whole new trial. Appellees properly protected themselves from this possibility by submitting issues on St. Gelais's liability. Point of error one is overruled and the interlocutory default judgment rendered against St. Gelais which was merged into the final judgment is affirmed.
Because St. Gelais' liability was established by the default judgment, points of error four through twelve contesting the legal and factual sufficiency of evidence to support the findings that St. Gelais entered into a civil conspiracy and defrauded appellees are without merit and are hereby overruled.
St. Gelais has also raised points questioning the legal and factual sufficiency of evidence to support the jury's findings that he was the alter ego of the other defendant corporations and Standard Drilling Company. (Standard Drilling was in bankruptcy at the time of trial and was not tried with the other defendants although issues on its liability and proportionate share of damages appropriately were submitted to the jury.)
Appellees argue that the default judgment precludes St. Gelais from challenging these findings on appeal. They argue that he has defaulted not only on fact issues regarding direct liability but also on issues of liability for the conduct of those companies alleged to be his alter egos. We agree.
The default judgment was entered because St. Gelais failed to obey court orders compelling production of documents requested by appellees in their attempt to discover evidence relevant to their pleadings of conspiracy, fraud and alter ego. If, after this default judgment on liability, appellees were required to establish liability by proving the elements of the torts and the factors of alter ego, then imposition of the sanction would be meaningless.
Equinox Enterprises, Inc. v. Associated Media Inc., 730 S.W.2d 872 (Tex.App. Dallas 1987, no writ), addresses the proper disposition of the alter ego issue in its review of a default judgment rendered as a sanction for discovery abuse. The plaintiffs in Equinox named a corporation and two individuals, Blake and McCauley, as defendants and specifically pleaded that the corporate defendant, Equinox, was an alter ego of the individuals. Judgment was entered by default against Blake, McCauley, and Equinox jointly and severally.
In affirming the default judgment, the Dallas court pointed out that alter ego is a theory under which individual liability may be imposed when it would not otherwise exist. Equinox Enterprises, Inc., 730 S.W.2d at 877. Whether a person is the alter ego of a corporation is determined from the presence or absence of several factors. Castleberry v. Branscum, 721 S.W.2d 270, 272 (Tex.1986). The existence or absence of these factors is a fact issue for the trier of fact. Id. Plaintiff's pleadings brought into issue fact questions of liability, which were then determined in favor of the plaintiff when the interlocutory default judgment was entered against the defendants. The default judgment thus included judgment on the alter ego theory and was held sufficient to support a joint and several judgment against Equinox and the individuals.
The same result is appropriate in our case. The trial court held that the liability of St. Gelais as pleaded by plaintiffs was established, and we should give effect to that unchallenged holding. In addition to the evidence presented at trial, which was sufficient to support a finding of alter ego, the default judgment established appellees' allegations that Standard Drilling, Transoil, Standard Systems, Hemisphere, and International were alter egos of St. Gelais. Therefore, St. Gelais' points of error 16, 17, 18, 19, 20 and 21 and Standard Systems' points 3, 4, 5, and 6 are without merit and are overruled. The default judgment on liability supports that part of the judgment that holds St. Gelais jointly and severally liable with the corporate defendants.
In regard to the transactions which form the basis of plaintiffs' suit, the following facts were presented at trial. The suit arose from three investments involving several parties. Plaintiffs Jackson and Dowdy were investors. Affiliated Commercial *256 Services, Inc. acted as middleman in bringing together the investors with Defendant Transoil, a vendor who owned workover/completion rigs, and Defendant Standard Drilling, a lessee who wanted the rigs to use in its business. As previously pointed out, Standard Drilling was owned by Hemisphere Investment Corp. which was owned by Transoil which was owned by St. Gelais. These interrelationships were not revealed to the investors. Acting as the investors' agent, Affiliated purchased the rigs from Transoil and then leased them to Standard Drilling. Affiliated received a commission from the vendor upon completion of the sale, and also received a management fee from the investors for negotiating the lease agreements, collecting the rental income, and performing other services in connection with the leases. Title to the rigs was held by the investors.
Under this arrangement appellee Jackson purchased the Big T rig in March, 1982 and leased it to Standard Drilling March 4, 1982. Appellee Dowdy purchased the Wilson Mogul "42" (Wilson) rig and leased it to Standard Drilling December 23, 1982. Appellee Dowdy also bought and leased a second rig, Skytop Brewster, in August, 1983. In each transaction the purchase price of the rig was $588,000 and the lease was for a 66-month term at $12,995 a month, with an option to purchase at the end of the lease term.
Each Rig purchased by Jackson and Dowdy was delivered directly to Standard Drilling in Oklahoma by the manufacturer. Standard Drilling acknowledged acceptance of the rigs with Delivery and Acceptance Receipts. Each receipt contained a rig description and a listing of tools that supposedly came with the rig. Standard Drilling began missing payments on the leases in early 1984. Eventually Affiliated filed suit for replevin in Oklahoma and repossessed the three rigs.
An expert appraiser, Larry Perdue, testified that after the rigs were recovered, he had the rigs stored in Oklahoma in guarded facilities where he did inventories of each rig and listed the equipment that was missing. Perdue testified that the cost of replacing the missing tools and equipment was approximately $179,000 for the Big T, $105,000 for the Wilson Mogul, and $97,000 for the Skytop. He compared his expert estimate of the actual rental value of the rigs at the time he inspected them with the value of the rigs as represented by the vendor. Skytop Brewster was worth $5250 a month as represented, but $2650 as it was; Wilson Mogul was worth $5350 a month as represented, but $2700 as it was; Big T was worth $4950 as represented, but $2400 as it was. The appraiser also attempted to find buyers or lessees for the rigs, but had no success.
The manufacturer of the Big T rig, Oscar Taylor, testified that he was instructed by St. Gelais, owner of Transoil, to construct a workover rig using old parts provided by Standard Drilling and some new parts. The objective was to make the rig look new even though some parts were 20 years old. Taylor invoiced Transoil $125,323 for building Big T. At trial, Taylor testified that the description of the Big T rig provided in the lease documentation was not an accurate description of the rig he built, stating that "only the serial number" was correct. For instance, he pointed out that the description says the rig had a 96-foot mast when it actually had an 88-foot mast.
After recovering the rigs and discovering the discrepancies in the rig descriptions, the plaintiffs filed this suit alleging several causes of action against the various defendants and joint and several liability among them. The case was submitted to the jury on thirty special issues.
Appellants challenge the sufficiency of the evidence to support many of these findings. We review the evidence in keeping with the principles set out in In re: King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951) and King v. Bauer, 688 S.W.2d 845 (Tex.1985). Findings supported by any evidence of probative force will be upheld against a no evidence challenge. Findings will be upheld against a factual sufficiency challenge unless the evidence is so weak as to render the finding manifestly erroneous or unjust. The jury is the sole judge of the *257 credibility of the witnesses and the weight to be given their testimony. Rego Company v. Brannon, 682 S.W.2d 677, 680 (Tex. App.Houston [1st Dist.] 1984, writ ref'd n.r.e.). We also note that appellants' several points of error challenging the sufficiency of the evidence to support various jury findings do not provide record references as required by the briefing rules. Rule 74(d), Tex.R.App.P.
Fraud
In the first group of special issues (1, 2, 3) the jury found that St. Gelais, Transoil, and Standard Drilling committed fraud resulting in damages to plaintiffs in connection with the sale and/or lease of the rigs in question. We have previously held that the default judgment rendered against Hemisphere and St. Gelais established these allegations against those defendants. In addition, testimony at trial showed that the rigs represented by Transoil to be new and fully equipped were actually used, reconditioned and poorly equipped rigs. Further evidence indicated that St. Gelais fraudulently misrepresented "the true facts" of both the sale and lease transactions and fraudulently induced appellees to enter into both transactions as a whole. Standard Drilling and Transoil failed to disclose their common ownership and the possible conflicts of interest generated by that relationship. Because it was shown that the lessee, Standard Drilling, was not a separate, independent company unrelated to the vendor, Transoil, the jury was entitled to believe plaintiffs' allegations of fraud and fraudulent inducement. Based on our review of the facts adduced at trial, we hold that the evidence was sufficient to support the jury's findings of fraud on the parts of Transoil and Standard Systems. St. Gelais' and Transoil's points of error 4, 5, 6, 7, 8, 9, 10, and Standard Systems' points 7, 8, 9, 10, 11, are overruled.
Civil Conspiracy
In the second group of issues (4, 5, 6, 7, 8) the jury found there was a civil conspiracy among St. Gelais, Transoil, Standard Systems, Standard Drilling, and Hemisphere from which damages resulted. Because it also found that each of these defendants acted willfully, the jury awarded exemplary damages. The evidence of the interrelationships between the various defendants was sufficient to support the jury's belief that St. Gelais and all the corporate defendants were acting in concert to defraud plaintiffs throughout the transactions in question. Absent a showing that the jury's answer is so contrary to the evidence as to be clearly wrong and manifestly unjust, it will not be set aside. Thompson v. Wooten, 650 S.W.2d 499, 501 (Tex.App.Houston [14th Dist.] 1983, writ ref'd n.r.e.). St. Gelais' points of error 20 and 21, and Standard Systems' point 4 are overruled.
Breach of Sales Contract
In the third group of issues (9, 10, 11) the jury found that Transoil breached its contracts to sell the rigs and that appellees sustained damages as a result. There was extensive testimony that the rigs which were delivered did not match the descriptions of the rigs which were promised and which plaintiffs contracted to buy. The manufacturer himself admitted that old parts were made to look new and that the condition of the rigs was so misrepresented that only the serial numbers in the rig descriptions were accurate. This evidence was sufficient to support the jury's findings of breach of contract. St. Gelais' and Transoil's points 4, 5, 8, and 15 are overruled.
Breach of Lease Contract
Because it was uncontested that Standard Drilling breached its contracts to lease the rigs, this issue was not submitted to the jury. In special issue 12 the jury found damages resulting from breach of the leases. The damages found were in keeping with expert testimony. Therefore, they had sufficient support in the evidence.
DTPA
In the fifth group of issues (13, 14, 15, 16, 17, 18) the jury found that Transoil committed eight deceptive acts, as defined by the Deceptive Trade Practices Act, in connection with the sale of the rigs. Tex. *258 Bus. & Comm.Code Ann. § 17.46(b)(1), (2), (3), (5), (6), (7), (12), (23) (Vernon Supp. 1987). Next, the jury found that one or more of those acts was the producing cause of actual damages and that one or more of those acts was committed knowingly. The evidence reviewed above also supports these findings and appellants' points of error raised in this regard are overruled.
Damages
Appellants bring several points of error attacking the judgment entered against them as being based on an improper measure of damages. Since appellants wholly failed to object to the charge on these grounds they have waived this argument on appeal. Wilgus v. Bond, 730 S.W.2d 670, 672 (Tex.1987); Shell Oil Company v. Chapman, 682 S.W.2d 257, 259 (Tex. 1984); Whitson Company v. Bluff Creek Oil Company, 156 Tex. 139, 293 S.W.2d 488, 493 (1956). All of appellants' points attacking the measure of damages used are therefore overruled.
Appellants next attack the sufficiency of the evidence to support the jury's findings of actual damages. In answer to the actual damages issues the jury found that Jackson was entitled to $596,863.90 and Dowdy to $897,485.30. These figures match the totals given by appellees' expert witness, Dr. Herbert Lyon, who testified as to the damages resulting from breach of the lease agreements. Dr. Lyon arrived at these totals by adding the amounts due for unpaid rent, plus accrued interest, to the amounts due for future rentals, adjusted to present value, and subtracting the fair market value of the rigs as determined by the expert witness Perdue. We have previously held that the evidence was sufficient to support these findings and the points of error attacking them are overruled.
In response to special issue number 17 the jury awarded Dowdy $1,800,000 and Jackson $1,200,000 in "additional" damages against Transoil under the DTPA. This issue incorrectly instructed the jury that it could award an additional amount not more than three times the actual damages. The Deceptive Trade Practices Act provides as follows regarding "additional" damages:
§ 17.50(b) In a suit filed under this section, each consumer who prevails may obtain:
(1) the amount of actual damages found by the trier of fact. In addition the court shall award two times that portion of the actual damages that does not exceed $1,000. If the trier of fact finds that the conduct of the defendant was committed knowingly, the trier of fact may award not more than three times the amount of actual damages in excess of $1,000;
This provision has been construed to allow for a maximum award, in the case of a knowing violation, of actual damages plus double the amount of those actual damages. Jasso v. Duron, 681 S.W.2d 279, 281 (Tex.App.Houston [14th Dist.] 1984, writ ref'd n.r.e.). Therefore, the instruction included in the additional damages issue was in error.
However, the trial court reduced the amount of additional DTPA damages against Transoil to only two times the actual damages ($1,193,727.80 to Jackson and $1,794,970.60 to Dowdy). A plaintiff may be allowed to elect the recovery he wants by waiving surplus findings with respect to damages. Kish v. Van Note, 692 S.W.2d 463 (Tex.1985); Butler v. Joseph's Wine Shop, Inc., 633 S.W.2d 926, 933 (Tex.App. Houston [14th Dist.] 1982, writ ref'd n.r. e.). The additional damages thus were properly modified, limiting the amount according to Section 17.50(b)(1) of the Texas Business and Commerce Code. Any error in the wording of special issue 17 was rendered harmless.
In connection with the fraud and civil conspiracy findings, and in addition to the "additional" damages awarded under the DTPA, the jury also awarded common law exemplary (punitive) damages as follows:
Plaintiff Plaintiff
For Jackson Dowdy
Against
Defendant St. Gelais $800,000.00 $1,000,000.00
---------- ------------
Defendant Transoil $400,000.00 $ 500,000.00
---------- ----------
Defendant Standard Systems
& Technology $400,000.00 $ 500,000.00
---------- ----------
Standard Drilling Co. $400,000.00 $ 500,000.00
---------- ----------
Hemisphere Investment $400,000.00 $ 500,000.00
---------- ----------
*259 Appellants first complain that an award of common law exemplary damages and DTPA "additional" damages is error. We do not agree. Recovery under the DTPA is, as a general rule, cumulative rather than exclusive of other available remedies. Kish v. Van Note, supra, at 467; Tex. Bus. & Com. Code Ann. § 17.43 (Vernon Supp. 1987). While recovery of both exemplary damages and statutory additional damages for the same act is prohibited, Butler v. Joseph's Wine Shop, Inc., supra, in the case before us no such error occurred. Plaintiffs alleged and proved several distinct acts: (1) violations of the Deceptive Trade Practices Act (misrepresentations) in connection with the sale of the rigs, (2) fraudulent inducement to contract in connection with the leases, (3) civil conspiracy and (4) breach of contract. The first act supports an award of "additional" damages under the DTPA. The second and third acts support an award of exemplary damages under common law. See Kish v. Van Note, and Shell Oil Company v. Chapman, supra. In addition, the supreme court's requirement of separate and distinct findings of actual damages for each act was met. Birchfield v. Texarkana Memorial Hospital, 747 S.W.2d 361 (Tex.1987). The jury found that the defendants breached their contracts with the plaintiffs, conspired to defraud them, committed fraud, and violated several provisions of the DTPA. The fact that the jury awarded the same amount of damages for each of those acts does not negate their obvious intent to award separate damages for the DTPA, fraud, breach of contract and conspiracy findings. According to Shell Oil Company v. Chapman, supra,
The submission of damage issues conditioned on liability findings, although erroneous, produced answers clearly indicating the jury's intent to find separate damages for the deceptive trade violations and for negligence. As to the DTPA, the jury found defendant guilty of certain proscribed conduct; found that conduct to have been a producing cause of damages to plaintiff; and, found an amount of damages. While the first damage issue did not limit the jury's answer to damages for deceptive trade practice violations solely, as neither defendant objected, the trial court judgment should be properly upheld. 682 S.W.2d at 259.
The same result is proper in the case before us. The jury gave affirmative answers to issues on each theory of liability submitted by the plaintiffs. Each separate liability issue was followed by a causation issue which was also answered affirmatively. Answers to individual damage issues followed. Therefore it is clear that the jury intended to hold the defendants liable for all the acts alleged and to fix damages for each. Plaintiffs have shown themselves to be entitled to both exemplary damages and additional DTPA damages. Appellants' points of error challenging the award of statutory and common law punitive damages are overruled.
As previously noted, while the measure of damages used by the jury was not appropriate in every instance, no objection was made on those grounds and no issues or instructions on other measures were submitted. Similarly, the plaintiffs did not object to entry of judgment for a single recovery of actual damages even though their pleadings and the form of the charge might have supported a greater recovery under the reasoning in Chapman. For this reason the actual damage award should stand.
Next, appellants attack the award of the "additional" damages against all of the defendants jointly and severally. The judgment itself correctly recites the separate awards of exemplary and additional damages as found by the jury but, in the decretal portion of the judgment, the court erroneously added the individual exemplary damage awards and the additional DTPA damages awarded solely against Transoil and referred to this total as "additional" damages. He then held the defendants who were not in bankruptcy jointly and severally liable for the total. Texas courts have long recognized the propriety of separate findings regarding the amount of exemplary damages, if any, to be assessed against each defendant. St. Louis & S.W. Ry. Co. v. Thompson, 102 Tex. 89, 113 *260 S.W. 144, 147 (1908); Schutz v. Morris, 201 S.W.2d 144, 147 (Tex.Civ.App.Austin 1947, no writ). See also, Akin v. Dahl, 661 S.W.2d 917, 922 (Tex.1983) (concurring opinion). The criteria used in setting the amount of exemplary damages demand individual assessment by the jury of each defendant's conduct, situation, sensibilities, and culpabilities. Chemetron Corp. v. Business Funds, Inc., 682 F.2d 1149, 1176 (5th Cir.1982). The trial court erroneously combined the common law exemplary damages awarded against each defendant with the award of "additional" damages under the DTPA. However, while we find error in the combination of the awards and the imposition of joint and several liability therefor, we need not reverse on these grounds. Rule 81, Tex.R.App.P.
Separate special issues were submitted and answered on the various types of damages sought by plaintiffs. Actual damages were awarded under special issue six in the amount of $596,863.70 to Jackson and $897,485.30 to Dowdy. Additional damages in excess of two times these amounts were awarded against Transoil under the DTPA in special issue 17. The court, as noted above, properly reduced these additional damages to an amount two times that of the actuals. In special issue eight common law exemplary damages were awarded in connection with the fraud and conspiracy findings. Special issue eight properly breaks down this award by individual defendants. Since the jury's findings support individual awards, the trial court's error in combining these amounts can be corrected by reforming the judgment to reflect the jury's findings. Rule 81, Tex.R.App.P. Reformation also corrects the trial court's error in holding the defendants jointly and severally liable for the exemplary damages awards.
The judgment of the trial court awarded Jerry Dowdy judgment against Erling Larsen, Transoil Rig Equipment, Inc., Jean Marie St. Gelais, Standard Systems and Technology, Inc., and International Equipment and Financial Services, Ltd., jointly and severally, for actual damages in the amount of $897,485.30. That part of the trial court's judgment is affirmed.
The judgment of the trial court awarded Jerry Dowdy judgment against Transoil Rig Equipment, Inc., Jean Marie St. Gelais, Standard Systems and Technology, Inc., and International Equipment and Financial Services, Ltd., jointly and severally, for "additional" damages in the amount of $4,294,970.60. That part of the trial court's judgment is set aside, and in lieu thereof this court renders judgment in favor of Jerry Dowdy as follows:
(1) against Transoil Rig Equipment, Inc. for additional damages under the Deceptive Trade Practices Act in the amount of $1,794,970.60;
(2) against Transoil Rig Equipment, Inc. for exemplary damages in the amount of $500,000.00;
(3) against Jean Marie St. Gelais for exemplary damages in the amount of $1,000,000.00; and
(4) against Standard Systems and Technology, Inc. for exemplary damages in the amount of $500,000.00.
The judgment of the trial court awarded Ocie Jackson judgment against Defendants Erling Larsen, Transoil Rig Equipment, Inc., Jean Marie St. Gelais, Standard Systems and Technology, Inc., and International Equipment and Financial Services, Ltd., jointly and severally, for actual damages in the amount of $596,863.90. That part of the trial court's judgment is affirmed.
The judgment of the trial court awarded Ocie Jackson judgment against Transoil Rig Equipment, Inc., Jean Marie St. Gelais, Standard Systems and Technology, Inc., and International Equipment and Financial Services, Ltd., jointly and severally, for "additional" damages in the amount of $3,193,727.80. That part of the trial court's judgment is set aside, and in lieu thereof this court renders judgment in favor of Ocie Jackson as follows:
(1) against Transoil Rig Equipment, Inc. for additional damages under the Deceptive Trade Practices Act in the amount of $1,193,727.80;
(2) against Transoil Rig Equipment, Inc. for exemplary damages in the amount of $400,000.00;
*261 (3) against Jean Marie St. Gelais for exemplary damages in the amount of $800,000.00; and
(4) against Standard Systems and Technology, Inc. for exemplary damages in the amount of $400,000.00.
We have considered appellants' remaining points of error and, finding them to be without merit, overrule them. 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/1624773/ | 522 So. 2d 64 (1988)
Joan Galbreath PHILLIPS, John D. Woods, Novice W. Fawcett, Arthur G. James, Dean W. Jeffers, and Richard Stimmel, Appellants,
v.
ORANGE CO., INC., a Delaware Corporation, Appellee.
Nos. 87-1640, 87-1641.
District Court of Appeal of Florida, Second District.
February 12, 1988.
Rehearing Denied March 17, 1988.
Marvin E. Barkin and Craig P. Clendinen of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, P.A., for appellants, Joan Galbreath Phillips, John D. Woods, Novice W. Fawcett, Arthur G. James, and Dean W. Jeffers.
John T. Blakely of Johnson, Blakely, Pope, Bokor, Ruppel & Burns, P.A., Clearwater, for appellant, Richard Stimmel.
Robert R. Vawter, Jr. and Jeanne T. Tate of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for appellee.
SCHOONOVER, Judge.
Joan Galbreath Phillips, John D. Woods, Novice W. Fawcett, Arthur G. James, Dean W. Jeffers, and Richard Stimmel, defendants in the trial court, appeal an order denying their motions to dismiss an action brought against them by the appellee, Orange Co., Inc., a Delaware corporation. We find that the trial court erred in ruling that it had personal jurisdiction over the appellants and, accordingly, reverse.
*65 Orange Co. acted as a holding company for Orange Co. of Florida, a wholly owned Florida corporation which conducted its operations in the state of Florida. Orange Co.'s primary source of income was derived through its ownership of Orange Co. of Florida. Although Orange Co. owned assets and was authorized to do business in several states, at all times material to this action, it was not authorized to transact business in the state of Florida. See § 607.304, Fla. Stat. (1985). While Orange Co.'s corporate and financial records were maintained at Orange Co. of Florida's office in Florida, Orange Co.'s executive offices were located in Columbus, Ohio.
The dispute between the parties arose out of a contract between Orange Co. and its president, appellant Stimmel, who is an Ohio resident. The contract was the type commonly referred to as a "golden parachute,"[1] and according to its terms, Stimmel was to receive various severance benefits if his employment with Orange Co. was terminated under certain specified circumstances. The remaining appellants, also non-Florida residents, voted to approve the contract in their capacity as members of Orange Co.'s board of directors. The contract was executed at Orange Co.'s offices in Columbus, Ohio.
Stimmel subsequently terminated his employment with Orange Co. in a manner described by the contract and demanded to receive the severance benefits provided for by the terms of the contract. Pursuant to the contract, Stimmel exercised an option to purchase a number of shares of Orange Co. common stock at a price below the market value. Stimmel also received monetary severance benefits from funds located in an Ohio bank account which belonged to Orange Co. of Florida.
Orange Co. subsequently filed a tort action in Polk County, Florida against the appellants because of their respective roles in the approval and execution of the contract. Orange Co. of Florida was not named as a party. The second amended complaint filed by Orange Co. attempted to assert "long arm jurisdiction" over the appellants pursuant to section 48.193(1)(b), Florida Statutes (1985). Stimmel and the remaining appellants filed two respective motions to dismiss for lack of personal jurisdiction. After the trial court denied both motions to dismiss, Stimmel and the remaining appellants filed timely appeals which have been consolidated.
The parties agree that under the facts of this case, if the trial court acquired personal jurisdiction over the appellants, it was acquired pursuant to section 48.193(1)(b). Section 48.193(1)(b) provides:
(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
... .
(b) Committing a tortious act within this state.
The trial court, therefore, only had jurisdiction over the appellants if Orange Co.'s cause of action arose from a tortious act committed by the appellants within the state of Florida. We agree with the appellants' contention that the record in this case does not establish that a "tortious act" was committed within the state.
Any breach of fiduciary duty by the appellants was committed in the state of Ohio when the appellant directors voted to approve Stimmel's contract. When the contract at issue was executed in Ohio, Orange Co. became exposed to specific liabilities which were contingent upon the occurrence of certain events. These contingencies were transformed into actual liabilities when Stimmel elected to terminate his employment in Ohio as provided in the contract. Orange Co., rather than liquidating *66 its own assets or borrowing money in its own name, chose to discharge its liabilities to Stimmel with funds contained in an Ohio bank account which belonged to Orange Co. of Florida. Thus, any tortious acts committed by the appellants occurred in Ohio.
Orange Co. argues that the trial court could acquire long arm jurisdiction over the appellants pursuant to section 48.193(1)(b) because the alleged tortious conduct of the appellants caused Orange Co. financial injury in Florida. We disagree. Although the fact that an injury occurs in Florida is crucial to a determination of when a cause of action accrued, the occurrence of the injury alone in the forum state does not satisfy the statutory test of section 48.193(1)(b). Jack Pickard Dodge, Inc. v. Yarbrough, 352 So. 2d 130 (Fla. 1st DCA 1977). In addition, although Orange Co.'s contractual liabilities were discharged with monetary assets of its Florida subsidiary as a result of the appellants' alleged acts in Ohio, this fact does not establish that Orange Co. itself suffered any financial damages in Florida. Orange Co. was not authorized to transact business in Florida. Its Florida subsidiary, Orange Co. of Florida, was a separate corporate entity and was not a party to the lawsuit. Even the money which Stimmel received came from Orange Co. of Florida's bank account located in Ohio. We, therefore, find that any injury to Orange Co. or its Florida subsidiary was sustained in Ohio.
In arguing that an injury was sustained in Florida, Orange Co.'s reliance on International Harvester Co. v. Mann, 460 So. 2d 580 (Fla. 1st DCA 1984), is misplaced. In Mann, our sister court stated that the "commission of a tort" for purposes of establishing long arm jurisdiction under section 48.193(1)(b) does not require physical entry into the state, but merely requires that the place of injury be in Florida. Since we find that Mann is factually distinguishable from the case at bar, we decline to agree or disagree with the Mann court's interpretation of section 48.193(1)(b). Although in Mann, the alleged acts of the defendant corporate officers occurred in another state, the victimized Delaware corporation had its physical assets and its operation as a business solely within the state of Florida. In the case sub judice, however, Orange Co. was a Delaware corporation which operated in Ohio. The mere fact that Orange Co.'s financial records were maintained in Florida and that its directors had other independent interests in Florida does not permit the same result as in Mann where the corporate assets involved in the tort were located in Florida.
Because no part of the appellants' alleged tortious conduct occurred in Florida and no injury resulting from the appellants' alleged conduct was suffered by Orange Co. in Florida, the trial court did not have jurisdiction over the appellants pursuant to section 48.193(1)(b). See Freedom Savings & Loan Association v. Ormandy & Associates, Inc., 479 So. 2d 316 (Fla. 5th DCA 1985). We, therefore, reverse the order denying the appellants' motions to dismiss and remand this cause with instructions to dismiss the complaint as to the appellants.
Reversed and remanded.
RYDER, A.C.J., and LEHAN, J., concur.
NOTES
[1] A "golden parachute" is generally defined as a termination agreement designed to trigger substantial bonuses and other benefits for corporate executives or directors upon a takeover of the corporation. See Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., 506 A.2d 173, fn. 5 (Del. 1986). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624758/ | 769 S.W.2d 521 (1989)
Ex parte Marvin M. ADELL, Relator.
No. C-7945.
Supreme Court of Texas.
May 17, 1989.
Dean Carlton, Dallas, for relator.
Raymond E. LaDriere, II, Henry J. Voegtle, III, G. Dennis Sullivan, Dallas, for respondent.
PER CURIAM.
In this original habeas corpus proceeding relator Marvin M. Adell argues he was denied due process because he was not given proper notice of the contempt charge for which he was incarcerated. The record was incomplete without fault of Adell when he filed his petition, and we ordered Adell released on bond pending the filing of the complete record and a reply. After review of the record and consideration of the reply, we agree the notice was insufficient and order relator discharged.
Adell was a defendant in a suit involving a close corporation in which he was an officer and shareholder. The trial court signed an order directing Adell to refrain from "withdrawing, paying or receiving any funds from the accounts of Adell Corporation and from obtaining any loans or other payments, in whatever form, from Adell Corporation, except for payments to third-party creditors in the ordinary course of business and to defendants of their salaries at the rate of salary in effect on July 13, 1988, the day plaintiff's application for a temporary restraining order was filed." Subsequently, the plaintiff filed a motion for contempt which referred to the quoted portion of the order and alleged as the violation of the order:
However, in an intentional and wilful disregard of this Court's Order, Marvin Adell caused the corporation to make payment for Marvin and Franklin Adell's personal charges.
There was no other specification or delineation of the alleged act or acts of contempt. The show cause order served on Adell contained the same specification.
It is possible that a court order prohibiting a specific act could be more specific than the present one, and the statement that the alleged contemnor intentionally and willfully committed the act would be sufficient notice. In the present case, the order directed Adell not to commit a general *522 class of acts, and included exceptions and qualifications. The act of contempt alleged in the motion for contempt and show cause order is ambiguous in at least three ways: (1) it fails to allege how Adell "caused the corporation to make payment"; (2) it fails to state what "personal charges" of Marvin and Franklin Adell were paid by the corporation; and (3) it fails to state why the payments of the personal charges, if indeed they were made, did not fall within one of the exceptions for personal payments allowed by the order.
This court has repeatedly held that full and unambiguous notice of the accusation of contempt must be served on the alleged contemnor. Ex parte Blanchard, 736 S.W.2d 642, 643 (Tex.1987); Ex parte Gordon, 584 S.W.2d 686, 690 (Tex.1979); Ex parte Edgerly, 441 S.W.2d 514, 516 (Tex.1969); see also Ex parte Vetterick, 744 S.W.2d 598 (Tex.1988). The motion and show cause order here clearly fail to meet that standard. Pursuant to Rule 122, Tex.R. App.P., a majority of the court find the trial court actions finding relator in contempt and committing him to jail are contrary to this court's opinions in Blanchard, Gordon, and Edgerly, and without hearing argument order relator discharged. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624774/ | 126 F. Supp. 529 (1955)
J. G. WARNER, Libellant, and Charles G. Warner Co., Intervening Libellant,
v.
THE Gas Boat BEAR (Official C. G. No. 31-A-405), her engines, tackle, gear and equipment, and Edward T. Sarabia, Owner, Respondents and Third-party Libellants,
McLean & Kristan, Insurance Agents, Third-party Respondents.
No. 7106-A.
District Court, Alaska First Division, Juneau.
January 11, 1955.
John S. Mansuy, Jr., Juneau, Alaska, for libellant.
John H. Dimond, Juneau, Alaska, for intervening libellant.
Mildred R. Hermann, Juneau, Alaska, for respondents and third-party libellants.
R. Boochever, of Faulkner, Banfield & Boochever, Juneau, Alaska, for third-party respondents.
*530 FOLTA, District Judge.
These are actions in rem and in personam to foreclose maritime liens against the respondent vessel and to recover from the owner the amount claimed for repairs made to the vessel.
In his answer, the owner denies that the repairs were made at his request and alleges that they were made at the instance of McLean & Kristan, agents of the insurer. It appears from the third-party libel that the vessel was damaged by striking a submerged rock or reef; that McLean & Kristan authorized the libellants to make repairs, but that after the vessel was repaired, they notified the owner that the loss was not within the terms of the policy; that the policy was delivered by the insurer to the B. M. Behrends Bank, a mortgagee of the vessel, and that because the owner never had possession of the policy he was ignorant of its limited coverage.
By exceptions to the third-party libel, McLean & Kristan challenge the jurisdiction of admiralty over the subject-matter as well as the sufficiency of the claim interposed thereby. The first and third exceptions are clearly without merit; the second and fourth are inter-dependent and overlap to such an extent that a decision of the question of jurisdiction will necessarily dispose of the question of sufficiency.
The rule appears to be well established that the claim which furnishes the basis for impleader must be maritime in nature. Of this prerequisite Benedict says, Vol. 2, p. 537, Sec. 350:
"It has been a subject of controversy whether a petition under the 56th Rule [Admiralty Rules, 28 U.S. C.A.] may be based upon a claim of recovery over, which would not sustain an independent action in admiralty, or, in other words, whether the non-maritime character of the third party's obligation, when considered in itself, bars the admiralty court from bringing such third party before it to respond to the principal obligation, which is maritime. The Court of Appeals for the Second Circuit has adopted the view that if the obligation is non-maritime the 7th Amendment of the Constitution of the United States has application and the 56th Rule has not, wherefore such petition must be dismissed and the impleaded party remitted to their rights and remedies at law."
See also Robinson on Admiralty, 22-26, Sec. 4, n. 25, and cases cited.
However, it is pointed out in the section quoted that
"A contrary construction has been reached by district courts in several cases proceeding on the theory that responsibility over receives a maritime character from the principal obligation so that the enforcement of a recovery over is but an exercise of equitable power residing in admiralty,"
citing several cases which antedate the enunciation of the view prevailing in the Second Circuit, and the recent case of Eastes v. Superior Oil Company, D.C., 65 F. Supp. 998. It should be noted, however, that what the Court said in the case just cited in support of the minority view is dicta because of its conclusion that the contract on which the impleader action was founded was in fact maritime in nature. It follows, therefore, that according to the view prevailing in the Second Circuit, for which, incidentally, there is abundant authority, a third party may not be impleaded where the claim against him is not maritime in nature. Undoubtedly a contract to procure insurance is not maritime in character, 1 Benedict 138-9, Sec. 67; Marquardt v. French, 2 Cir., 53 F. 603; The City of Clarksville, 7 Cir., 94 F. 201, and hence will not support a petition to implead, The D. T. Gilmartin, D. C., 66 F. Supp. 382, 384. In the case last cited, the Court said:
"The question presented for consideration is whether or not the alleged contract is within the admiralty or maritime jurisdiction of this court. No cases have been cited by the respondent which aid it in its *531 position. All the cases are to the effect that the admiralty court has no jurisdiction. The cause of action alleged is a common law cause of action for a breach of contract to procure insurance. Upon this issue under the Constitution the respondent-impleaded is entitled to a jury trial."
Had McLean & Kristan, when notified of the loss, done nothing further than decline to pay, the owner could have resorted to an action for negligence, Coffey v. Polimeni, 9 Cir., 188 F.2d 539, or for breach of contract to obtain the insurance applied for. But these are common-law actions not cognizable in admiralty. And it would seem to be an oversimplification to say that by authorizing repairs and thus creating a maritime contract, the agents brought themselves squarely within the language of Rule 56 authorizing the impleading of those "who may be partly or wholly liable either to the libellant or to such claimant or respondent", for as is pointed out in Rudy-Patrick Seed Company v. Kokusai Kisen Kabushiki Kaisha, D.C., 1 F. Supp. 266, 267, the impleading petition must "* * * set forth therein such facts as will show either: (1) A cause of action within admiralty jurisdiction between the impleaded party and the libelant [citing cases]; or (2) a claim for indemnity against the impleaded party and in favor of the petitioner which comes within admiralty jurisdiction."
It would thus appear that two types of claims are authorized under Rule 56. The first type is the simple indemnity situation in which, if A is liable to B, then C is liable to A. In this illustration B has no claim against C and C's liability to A is contingent upon A's liability to B. Illustrative of the second type is a case in which a direct claim, either alternate or joint, is, or may be, asserted against a third party, as where A and C are both liable to B. In this situation, if B asserts a claim against A then A may implead C to prevent a multiplicity of suits and obtain complete relief in one action. A case in which a charterer orders supplies is a further example. The vessel is liable in rem and the charterer in personam. They are alternatively liable and each may be sued but when the supplier proceeds against the vessel, the claimant may implead the charterer as being directly liable to the supplier. The same may be said of collision cases in which a third party is brought in as jointly liable with the respondent.
It will be seen that the instant case would fall within the first category had the owner alone ordered repairs and upon being sued by the repairman sought to implead McLean & Kristan. However, since such a claim would not be cognizable in admiralty, impleader would not lie, The D. T. Gilmartin, supra. But the authorization of repairs by the agents served to introduce an additional element into the case and to impress upon the claim against the agents a maritime character which ordinarily would bring it within the second category. The situation may then be summarized as one in which there is a maritime claim against the vessel and owner, a maritime claim against the agents, but a non-maritime relationship between the owner and the agents. Whether this situation will support an impleader is the determinative question.
I am of the opinion that the question must be answered in the negative. When the problem is rid of confusing considerations and reduced to its essence, it is clear that the underlying cause of action is non-maritime. The ultimate issue is not the negligence of the agents in authorizing repairs, but their liability for failing to procure the policy agreed upon an issue which is triable at law. Support for this conclusion may be found in The Daylight, 2 Cir., 206 F. 864; The Cetriana, 9 Cir., 232 F. 175; The Providence, 1 Cir., 293 F. 595; Soderberg v. Atlantic Lighterage Corporation, 2 Cir., 15 F.2d 209; Rich v. U. S., 2 Cir., 177 F.2d 688; Aktieselskabet Fido v. Lloyd Brazileiro, 2 Cir., 283 F. 62. Cf. Patel Cotton Co. v. *532 Steel Traveler, D.C., 107 F. Supp. 191, where although impleader was allowed, the question of jurisdiction was not presented.
The underlying principle of these cases is that the issues to be resolved by the Court must all be of a maritime character. Since the claim under discussion does not meet this test it follows that it does not fall within the jurisdiction of admiralty. Accordingly, I am of the opinion that the second exception should be sustained. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624754/ | 769 S.W.2d 89 (1989)
STATE of Missouri, Respondent,
v.
Sylvester HORNBUCKLE, Appellant.
No. 70724.
Supreme Court of Missouri, En Banc.
April 18, 1989.
Rehearing Denied May 16, 1989.
*91 Daniel L. Sayle, Asst. Public Defender, Clayton, for appellant.
William L. Webster, Atty. Gen., Karen A. King, Asst. Atty. Gen., Jefferson City, for respondent.
COVINGTON, Justice.
Sylvester Hornbuckle appeals from his convictions by jury on two counts of robbery in the first degree, § 569.020, RSMo 1986, four counts of armed criminal action, § 571.015, RSMo 1986, and two counts of kidnapping, § 565.110, RSMo 1986. The trial court found appellant to be a persistent offender and sentenced him to six thirty-year and two fifteen-year terms of imprisonment, to be served consecutively, for a total of 210 years in prison. The Missouri Court of Appeals, Eastern District, reversed and remanded for retrial. This Court granted transfer. The judgment entered upon the verdict of the jury is affirmed.
Viewed in the light most favorable to the verdict, the evidence at trial established the following: During the evening of February 1, 1986, Robert and Emily Sudhoff stopped at the Venture Department Store on Page Avenue in the City of Overland in St. Louis County. At approximately 8:00 p.m., the couple returned to their car which was parked in the store parking lot. Mr. Sudhoff unlocked and opened the front passenger door for his wife, then proceeded around the rear of the car toward the driver's side. Mrs. Sudhoff seated herself in the car and released the power lock on the car's doors. As she fastened her seat belt, Mrs. Sudhoff looked over her shoulder and saw that a stranger had entered the back seat of the car and was pointing a gun at Mr. Sudhoff's head. The man announced that it was a holdup and demanded the couple's valuables. Mr. Sudhoff gave the man his watch, a diamond ring and a coin purse. The intruder ordered Mrs. Sudhoff to give him her purse but she had not brought one with her. He then asked for her rings. As Mrs. Sudhoff handed him a dinner ring, she turned and looked directly at him.
Still holding the gun to Mr. Sudhoff's head, the intruder ordered Mr. Sudhoff to drive out of the parking lot. They left the lot and proceeded a short distance down an access road toward Page Avenue. The man then instructed Mr. Sudhoff to stop the car and ordered the Sudhoffs out. The man also exited the car. As Mrs. Sudhoff watched, the man frisked Mr. Sudhoff, taking his wallet, then reentered the car and drove off, abandoning the Sudhoffs on the access road. A short time later, a car stopped and offered assistance. The motorist then took the Sudhoffs back to the Venture store, where they contacted a security guard who summoned the police.
Two evenings later, in an assault similar in style, appellant was arrested while attempting to rob a woman in the parking lot of a Venture store in the City of St. Louis. Accounts of the City robbery in the local newspapers identified appellant by name. Friends of the Sudhoffs suggested that the suspect in the City robbery might also be responsible for robbing the Sudhoffs.
On February 10, the Sudhoffs were called to the Overland Police Department to view a photographic lineup. The police indicated that they believed they had a suspect in the case, but told the Sudhoffs nothing else prior to or during the identification session.
The Sudhoffs viewed the photo array separately. Based on her recognition of appellant's face, Mrs. Sudhoff selected appellant's picture from an array of approximately *92 thirty photographs. To confirm her identification of appellant Mrs. Sudhoff signed and dated the back of the photograph.
Although Mr. Sudhoff had his back to the assailant throughout the robbery and never saw the man's face, he also viewed the photo array. Mr. Sudhoff claimed that he selected appellant's picture from the array based solely on the description given to him by his wife.
The photograph of appellant used in the array was the arrest photo from the City of St. Louis robbery. The photograph bore appellant's name and date of arrest as well as the standard descriptive data.
Nine days later, on February 19, the Sudhoffs attended a live five-person lineup at the downtown police station in the City of St. Louis. The Sudhoffs viewed the lineup separately. There was no information or prompting from the police. Mr. Sudhoff selected appellant from the lineup based on his recognition of appellant's voice. Mrs. Sudhoff selected appellant from the lineup based on her recognition of appellant's face as well as recognition of his voice. Both Sudhoffs had previously noted that the assailant spoke with a very soft, distinctive voice.
Appellant chose not to attend his trial or testify in his own defense. Consequently, the Sudhoffs made no positive in-court identification of appellant. At trial, Mrs. Sudhoff denied either seeing the name Sylvester Hornbuckle on appellant's photograph prior to selecting it from the array, or any familiarity with the name through newspaper accounts or otherwise prior to the police telling her that the man she had identified was Sylvester Hornbuckle. Mr. Sudhoff testified that he may have been familiar with appellant's name prior to viewing the photo array, but that he had not noticed the name on the photograph. The jury found appellant guilty as charged.
On appeal, appellant raises five claims of error. Appellant asserts that the trial court erred by: (1) admitting into evidence the out-of-court identifications by the Sudhoffs; (2) allowing testimony from a state's witness implying the commission of other crimes by appellant; (3) overruling appellant's pretrial pro se motion to discharge his attorney and his attorney's corresponding request to withdraw; (4) overruling appellant's motion for a judgment of acquittal on the grounds that there was insufficient evidence to sustain a conviction; and (5) denying appellant's motion for a mistrial when, during deliberation, the jury mistakenly received an exhibit.
I.
In his "Points Relied On," appellant contends that the trial court erred in admitting testimony regarding the Sudhoffs' out-of-court photograph and lineup identification of appellant because they were made under circumstances so inherently suggestive and conducive to mistaken identification that appellant's right to due process was violated. Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). Specifically, appellant argues that the totality of the circumstances rendered the photographic identification so suggestive as to be unreliable and therefore inadmissible. Appellant further argues that the improper photo identification so tainted the later live identification that testimony regarding the live identification should have been excluded as well.
Appellant has failed to preserve the issue for appellate review. Rule 29.11. At trial, appellant made only a limited hearsay objection to Mr. Sudhoff's testimony that he selected appellant's picture based on the description given to him by his wife. He objected to no other identification testimony by the Sudhoffs. He did not object to the admission of the exhibits of the photo array and lineup. In his motion for new trial, appellant merely complained that the trial court erred in refusing to instruct the jury on the dangers inherent in and the unreliability of eyewitness testimony, and this allegation was made with reference solely to Mrs. Sudhoff's testimony. See State v. Moiser, 738 S.W.2d 549, 562 (Mo. App.1987).
Since the error of which appellant complains is not preserved for review, appellant *93 bears the burden of demonstrating that the action of the trial court was not only erroneous, but that the error so substantially impacted upon his rights that manifest injustice or a miscarriage of justice will result if the error is left uncorrected. State v. Driscoll, 711 S.W.2d 512, 515 (Mo. banc 1986), cert, denied, 479 U.S. 922, 107 S. Ct. 329, 93 L. Ed. 2d 301 (1986). Relief under plain error, therefore, requires that appellant go beyond a mere showing of demonstrable prejudice to show manifest prejudice affecting his substantial rights. State v. Moore, 731 S.W.2d 351, 354 (Mo. App.1987).
The state submits that, given this threshold, plain error cannot exist in the present case since admission of the identification testimony, particularly the testimony of Mr. Sudhoff, helped appellant's defense more than it hurt. Specifically, the state argues that the weaker testimony of Mr. Sudhoff provided a vehicle for attacking the stronger testimony of Mrs. Sudhoff, raising questions about the accuracy of the identifications generally, the motives of the Sudhoffs and the zeal with which the police pursued the case. In this context, the state argues, admission of the testimony did not result in manifest injustice.
In part because of the rationale tendered by the state, but primarily because the bulk of the identification testimony was in fact admissible, appellant has failed to establish the existence of plain error.
Reliability, rather than suggestiveness, is the "linchpin" in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140 (1977); State v. Story, 646 S.W.2d 68, 71 (Mo. banc 1983). Reliability is to be assessed under the totality of the circumstances. Id. The factors to be considered include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. Id.
In sum, the crucial test for the admission of identification testimony is two-pronged: (1) was the pre-trial identification procedure impermissibly suggestive, and (2) if so, what impact did the suggestive procedure have upon the reliability of the identification made by the witness. State v. Higgins, 592 S.W.2d 151, 159 (Mo. banc 1979). Identification testimony will be excluded only when the procedure was so suggestive that it gave rise to a very substantial likelihood of irreparable misidentification. Id.
With regard to the photographic identification, appellant contends that the totality of the circumstances, including the newspaper accounts of the City robbery which identified appellant by name, the telephone calls from the Sudhoffs' friends suggesting that the same man was responsible for both robberies, an indication by the police that the suspect in the City robbery was also a suspect in their robbery, together with the fact that the photograph of appellant in the photo array was from his recent City arrest and bore his name and the arrest date, rendered the photographic identification so suggestive as to be unreliable and therefore inadmissible.
Allegations of suggestiveness similar to those made by appellant have been considered unavailing in numerous other cases. For example, a lineup was not rendered unduly suggestive merely because the victim anticipated the presence therein of his or her assailant. State v. Stephens, 708 S.W.2d 345, 348 (Mo.App.1986); State v. Bolanos, 743 S.W.2d 442, 445 (Mo.App. 1987). Similarly, a lineup was not rendered impermissibly suggestive simply because the police, in requesting a witness to come in for a lineup identification, stated that they had a suspect which the witness might be able to identify. State v. Ealey, 727 S.W.2d 165, 167 (Mo.App.1987); State v. Holly, 697 S.W.2d 250, 252 (Mo.App.1985). In addition, lineups were not found to be unduly suggestive notwithstanding exposure of the witness to newspaper or television *94 reports, including reports which contained a picture of the defendant. See State v. Lawrence, 700 S.W.2d 111, 112 (Mo.App.1985); State v. Bullington, 684 S.W.2d 52, 54 (Mo.App.1984); State v. Robinson, 591 S.W.2d 18, 20 (Mo.App.1979). In the same vein, lineups have been held non-suggestive when friends or family suggested to the witness that the defendant was responsible for the crime or where they provided the witness with the defendant's name. See State v. Lawrence, 700 S.W.2d at 112; State v. Holly, 697 S.W.2d at 252. Nor was an identification inherently suggestive when, of the various suspects presented to the witness, the defendant alone was identified by name. State v. Davis, 507 S.W.2d 32, 34 (Mo.App.1974). Finally, and most closely on point, a photographic lineup was not considered unduly suggestive even though the defendant's name, height and weight were listed on his photograph and the array was presented to the witness after the defendant had been publicly reported as a suspect. State v. Robinson, 591 S.W.2d at 20. (See also, State v. Glass, 703 S.W.2d 81, 82 (Mo.App. 1985) where, at the time of the identification, the victims may have had available for reference photographs of the defendant they had taken personally).
Contrary to appellant's contentions with regard to the photographic lineup, therefore, it cannot be said as a matter of law that the photographic lineup was impermissively suggestive. While there are factors which may have operated to cloud identification, within the parameter of impermissible suggestiveness, the extent to which the perception and memory of a witness is influenced by outside sources is a question for the trier of fact. See State v. Lawrence, 700 S.W.2d at 112; State v. Davis, 507 S.W.2d at 34. Here Mr. and Mrs. Sudhoff were subjected to full cross-examination regarding the alleged suggestive influences. The witnesses testified that their identification was not swayed by the extrinsic events. The weight to be given such testimony was a question for the jury.
Moreover, given that reliability, and not suggestiveness, is the key to admissibility, it is clear that the testimony of Mrs. Sudhoff was reliable under the totality of the circumstances as articulated in Manson v. Brathwaite. Mrs. Sudhoff had several opportunities to view appellant at close range during the robbery and kidnapping. She made a conscious effort to remember his face. Her prior descriptions of the assailant were consistent with appellant's appearance. Her identification was certain and was made within several days of the crime. Even if one assumed, arguendo, that there were elements of suggestiveness in the photographic identification, they were clearly insufficient to corrupt the reliability of Mrs. Sudhoff's identification. Her identification testimony was therefore admissible.
It is equally clear, however, that, considerations of suggestiveness aside, Mr. Sudhoff's identification was significantly less reliable than that of his wife. Arguably, Mr. Sudhoff's photographic identification testimony should not have been admitted.[1] Other than appellant's voice, a basis which could not be utilized in the photographic identification, Mr. Sudhoff had no other source upon which to base his identification of appellant as the assailant. The weakness in Mr. Sudhoff's testimony, however, was made apparent on both direct and cross-examination. At trial, Mr. Sudhoff repeatedly acknowledged that he never saw his assailant's face. Mr. Sudhoff further acknowledged that his photo identification was based solely on his wife's description of the assailant. Moreover, contrary to Mr. Sudhoff's testimony, the supervising police officer testified that Mr. Sudhoff was not able to identify anyone from the photo array. There was no confirming signature of Mr. Sudhoff on the back of appellant's photograph. Overall, Mr. Sudhoff's testimony detracted from, *95 rather than bolstered the testimony of his wife and the identification of appellant generally. Questions regarding the ability of Mr. Sudhoff to identify appellant with certainty, not to mention Mr. Sudhoff's veracity, were clearly put before the jury. See State v. Little, 674 S.W.2d 541, 544 (Mo. banc 1984), cert, denied, 470 U.S. 1029, 105 S. Ct. 1398, 84 L. Ed. 2d 786 (1985). Under these circumstances it cannot be said that appellant was manifestly prejudiced by Mr. Sudhoff's testimony. Cf. State v. Valentine, 584 S.W.2d 92, 97 (Mo. banc 1979); State v. Mandina, 541 S.W.2d 716, 719 (Mo.App.1976). Any error in admitting the testimony, therefore, did not result in a miscarriage of justice.
With respect to the live lineup identification, appellant contends, in essence, that after the photographic identification, the Sudhoffs went to the live lineup with the intent to identify the man who looked like Sylvester Hornbuckle, not the man who robbed them. There is no evidence that the live lineup was impermissibly suggestive. The mere fact that the Sudhoffs participated in a prior photo identification did not automatically result in the live lineup being suggestive, notwithstanding that appellant was the only person who appeared in both lineups. State v. Robinson, 641 S.W.2d 423, 427 (Mo. banc 1982). The Sudhoffs were cross-examined on this allegation of suggestiveness, which they denied, and it was within the province of the jury to assess their credibility on that issue. See State v. Little, 674 S.W.2d at 544; State v. Stephens, 708 S.W.2d at 348.
Moreover, the lineup identification of both Mr. and Mrs. Sudhoff had a basis for reliability independent of the prior photo display. As previously noted, Mrs. Sudhoff's identification of appellant was clearly reliable under the totality of the circumstances and was therefore admissible. Her identification of appellant at the live lineup through recognition of his voice further added to the reliability.
As for Mr. Sudhoff, while his sole basis for independent identification was his recognition of appellant's voice, that alone was sufficient to make his testimony admissible. State v. Bolanos, 743 S.W.2d at 442; State v. Bell, 300 S.W. 504, 505 (Mo.1927). Factors for assessing the reliability of Mr. Sudhoff's voice identification in the present case included his opportunity to hear the assailant's voice numerous times during the crime, his high degree of attention and close proximity to the speaker and the level of certainty he exhibited when identifying the voice of his assailant from the voices of the other men in the lineup. With a sufficient degree of reliability established, the weight to be given Mr. Sudhoff's voice identification became a question in the province of the jury. Id.
In view of the foregoing, appellant has failed to show manifest prejudice affecting his substantial rights.
II.
Appellant contends that the trial court erred in denying his motion for mistrial following certain comments by police Detective Ray Papish, one of the state's witnesses. Prior to trial, appellant had filed a motion in limine seeking to prevent the state from informing the jury that appellant had a number of aliases. The trial court sustained the motion, excluding references to all aliases except the alias "Mike Beck," which appellant had given to police when arrested for the City robbery. During cross-examination, as appellant's counsel questioned Detective Papish about an incident in which appellant signed the name "Mike Beck" on a lineup card nine days after he had made a voluntary statement which he had signed "Sylvester Hornbuckle," the following exchange took place:
[Appellant's counsel]: Why in the world, officerhe signed Sylvester Hornbuckle on this thing ten days prior, so when he signed Mike Beck on this picture or on this card that he held up?
[Detective Papish]: That's just one of his aliases he used frequently.
Appellant's counsel immediately objected, asked that the answer be stricken and moved for a mistrial. The court overruled the motion, finding that the answer was within the purview of the question asked by appellant's counsel. Later in the cross-examination, *96 appellant's counsel asked about the significance of appellant's willingness to give a statement. Detective Papish replied: "Sylvester has always been willing to talk." Appellant's counsel again moved for a mistrial, claiming that the answer indicated appellant's involvement in other crimes.
Criminal defendants have a right to be tried only for the offense for which they are charged. State v. Williams, 652 S.W.2d 102, 110 (Mo. banc 1983). Proffered evidence will run afoul of this rule if it shows that the defendant has committed, been accused of, been convicted of or definitely associated with another crime or crimes. State v. Pilchak, 655 S.W.2d 646, 649 (Mo.App.1983).
The decision to declare a mistrial, however, rests largely within the discretion of the trial court since the trial court is in the best position to determine what prejudicial effect, if any, an incident has on the jury. State v. Schneider, 736 S.W.2d 392, 401 (Mo. banc 1987). The trial court's decision will not be disturbed absent an abuse of that discretion. Id.
In the present case, the witness' vague references cannot be characterized as clear evidence associating appellant with other crimes. See State v. Howard, 714 S.W.2d 736, 738 (Mo.App.1986); State v. Stubenrouch, 702 S.W.2d 926, 930 (Mo. App.1985); State v. Witt, 685 S.W.2d 266, 271 (Mo.App.1985).
Moreover, the trial court did not abuse its discretion in refusing to grant a mistrial, because the remarks were brought into evidence by appellant's own, open-ended questions. State v. Ray, 647 S.W.2d 522, 524 (Mo. banc 1983).
Finally, the remarks cannot be said to have prejudiced appellant since earlier testimony intimating appellant's criminal past had already been admitted without objection. Specifically, the fact that appellant had been booked as "Mike Beck" when arrested for the City robbery (admitted to establish a common scheme or plan) was already in evidence, as was the information, again elicited by appellant's counsel, that appellant had been convicted of the City robbery and sentenced to seventy-two years in prison.
III.
Appellant contends that the trial court erred by overruling his pro se motion to discharge his attorney and his attorney's corresponding request to withdraw, both of which were made the day of trial. Appellant claims that an irreconcilable conflict had arisen between himself and trial counsel, manifested by a total breakdown in communication, and that the trial court did not properly investigate his assertion that counsel was not prepared to go forward with trial. Accordingly, appellant argues, the trial court's ruling denied him effective assistance of counsel.
The ultimate determination as to whether a defendant should be allowed to discharge his attorney, or whether defense counsel should be allowed to withdraw, are matters within the discretion of the trial court. State v. Turner, 623 S.W.2d 4, 11 (Mo. banc 1981), cert, denied, 456 U.S. 931, 102 S. Ct. 1982, 72 L. Ed. 2d 448 (1982). Appellate courts will not interfere with a trial court's exercise of discretion unless it clearly appears that it has been abused, and the appellate court will indulge every intendment in favor of the trial court. State v. Richardson, 718 S.W.2d 170, 172 (Mo.App.1986).
To warrant substitution of counsel, a defendant must show "justifiable dissatisfaction" with appointed counsel. State v. Gilmore, 697 S.W.2d 172, 174 (Mo. banc 1985), cert, denied, 476 U.S. 1178, 106 S. Ct. 2906, 90 L. Ed. 2d 992 (1986). To obtain a change of attorney on the eve of trial, a defendant must demonstrate an irreconcilable conflict with his appointed counsel. State v. Turner, 623 S.W.2d at 11; State v. Richardson, 718 S.W.2d at 173. To demonstrate an irreconcilable conflict, the defendant must come forward with evidence that shows a total breakdown in communication between defendant and his attorney. Id. Such an allegation may not be grounded on subjective, unsubstantiated feelings, but must be rational. State v. Schubert, 747 *97 S.W.2d 165, 170 (Mo.App.1988). In assessing a trial court's decision on such a claim made on the eve of trial, the trial court's discretion, tempered as it is by the public's need for effective administration of justice, will not be lightly disturbed on appeal, particularly when it appears the accused was not denied skillful and competent representation. State v. Turner, 623 S.W.2d at 11.
In the present case, appellant indicated to his counsel on the day before trial that he was willing to plead guilty to the charges pursuant to a plea bargain. The next morning, however, appellant changed his mind and asked to go forward with trial. Immediately before trial, appellant submitted a pro se motion to the court requesting a change of attorney; he claimed generally that counsel's representation was defective. Verbally, appellant stated that counsel had told him certain witnesses had been directed to appear at trial, but appellant's own conversations with these witnesses indicated that they had not received any messages from appellant's counsel. The trial court then asked: "Is there anything you want to tell me about your motion, at this time, other than what is in writing here?" Appellant stated that he had nothing to add. Appellant's motion was then denied.
Appellant continued to insist that he could not go forward with trial because he was not ready and he did not think his counsel could represent him in the way he desired. Appellant offered no further reasons for this belief. Throughout, counsel repeatedly suggested alternative solutions to appellant's concerns. Appellant ultimately decided that he wished the trial to proceed without him. Counsel explained at length to appellant how such a decision could hurt appellant and strongly urged appellant to stay in attendance and confer with counsel. Counsel stated that he would call appellant's witnesses at the recess and subpoena them if necessary.
Appellant then made an oral request for a change of judge. Appellant's counsel argued to the court that appellant was in fact entitled to make such a request and, after conferring with the trial court, counsel informed appellant that if appellant put the request in writing, the trial court would grant the motion. Appellant decided to withdraw his request, however, and determined once again that the trial should continue without his presence.
From this record, it is clear that appellant failed to show a substantiated, justifiable dissatisfaction with counsel warranting a continuance and the appointment of new counsel. The trial court afforded appellant every opportunity to demonstrate a basis for the alleged irreconcilable conflict. The trial court specifically inquired as to the basis for appellant's motion to discharge his counsel and, in the extended exchange which followed, observed counsel's repeated efforts to assist appellant in having his concerns met. Under the circumstances, it was apparent to the trial court, as it is to this Court on appeal, that there was not a "total breakdown of communication" between attorney and client and no irreconcilable conflict between appellant and his counsel. Any failure in communication was attributable to appellant's own conduct. The trial court committed no abuse of discretion.
IV.
Appellant contends that the trial court erred in overruling his motion for judgment of acquittal because the evidence was insufficient to sustain a conviction.
In assessing the sufficiency of the evidence, this Court must accept as true all the evidence and the inferences therefrom that tend to support the verdict and disregard all evidence and inferences to the contrary. State v. Story, 646 S.W.2d at 72. A reviewing court's function is not to substitute its judgment for that of the jury, but to determine whether the evidence, considered in the light most favorable to the state, is sufficient to support the verdict. Id.
Appellant was convicted of two counts of robbery, four counts of armed criminal action and two counts of kidnapping. One commits the crime of robbery in the first degree when he forcibly steals property and in the course thereof is armed with a *98 deadly weapon. § 569.020, RSMo 1986. Armed criminal action is the commission of any felony under the laws of this state "by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon." § 571.015, RSMo 1986. The crime of kidnapping occurs when one unlawfully removes another person without consent from the place where that person is found and unlawfully confines that person without consent for a substantial period for the purpose of facilitating the commission of any felony or flight thereafter. § 565.110.1(4), RSMo 1986.
The evidence established that appellant, armed with a handgun, entered the rear seat of the Sudhoffs' car in the Venture store parking lot. Appellant held the gun to Mr. Sudhoff's head and demanded the couple's jewelry and money. Keeping the gun at Mr. Sudhoff's head, appellant ordered Mr. Sudhoff to drive away from the store's parking lot. Once away from the lot, appellant ordered Mr. Sudhoff to stop, forced the couple from the car, and took more money from Mr. Sudhoff. Appellant then abandoned the Sudhoffs, fleeing in their car. The Sudhoffs subsequently identified appellant as their assailant.
The evidence was sufficient to support the convictions.
V.
Appellant contends the trial court erred in overruling his motion for mistrial when "during deliberations the jury mistakenly received a copy of Emily Sudhoff's diary." Appellant additionally asserts that the diary was "inflammatory, prejudicial, and contained inadmissible evidence, including evidence of uncharged crimes." At trial, however, appellant merely requested a mistrial on the basis of the jury's opportunity to view "it." In his motion for new trial, appellant used the word "diary"; otherwise, his complaint mirrored that which he made at trial.
Declaration of a mistrial is a drastic remedy which is employed only where there has been grievous error. State v. Escoe, 548 S.W.2d 568, 571 (Mo. banc 1977). The law in Missouri has long been established that the determination of whether to declare a mistrial rests largely in the discretion of the trial court. Id. The circumstances of this case demonstrate that the trial court did not abuse its discretion.
Mrs. Sudhoff's testimony at trial revealed that she had maintained a writing in which she recounted details of the case and its investigation. During the trial, the prosecutor referred to the writing as a "log." The log was marked as Exhibit 11 and subsequently admitted into evidence without objection. In their briefs on appeal, both parties refer to Exhibit 11 as a "diary."[2]
Although appellant contends that most of the information contained in the exhibit was inadmissible, substantially all of the information contained in the exhibit, with the exception of the observation that Sylvester Hornbuckle had a long criminal record and the reference to the unrelated kidnap/rape/murder case, was admitted into evidence without objection through testimony of Mrs. Sudhoff.
What evidence actually went to the jury in the context of this question is not clear from the record. The transcript contains dialogue between appellant's counsel and the trial court which occurred after some or all of Exhibit 11 was delivered to the jury room. Appellant's counsel reports that the jury requested the "diagram," that the bailiff delivered the "diagram" to the jury, recognized the error, and that the "diagram" was in the possession of the jury for perhaps two minutes. As reported in the transcript of defense counsel's remarks, therefore, only the diagram went to the jury. Presumably, this reference is to the diagram Mrs. Sudhoff drew of the parking lot where the incident took place.
The trial court conceded during dialogue with counsel that, after the jury retired, all had agreed, should the jury request Exhibit 11, "I would not give that to them with the *99 exception of the diagram of the scene of the incident, which was done." In denying appellant's motion for mistrial, the trial court noted "the entire Exhibit 11 was admitted into evidence and it is my belief that they are entitled to see that if I sent it to them. On that ground and the fact that no salient points of the diagram were seen and only one juror viewing the first page, a motion for mistrial is denied."
Rule 81.12(a) states: The record on appeal shall contain all of the record, proceedings, and evidence necessary to the determination of all questions to be presented, by either appellant or respondent, to the appellate court for decision." The trial transcript is binding on the reviewing court. State v. Stewart, 636 S.W.2d 345, 347 (Mo.App.1982). The transcript's report of the continuous use of the word "diagram" throughout the dialogue between appellant's counsel and the trial court creates confusion with regard to what actually went to the jury. Only by allowing the defendant favorable inferences based upon the trial court's statements can this Court consider this point.
This Court is further hampered by the deficiency of the record provided by appellant because the record contains no information whatsoever regarding the circumstances surrounding the "agreement" to which counsel and the court refer when appellant made his motion for mistrial. There is no record of the content of the agreement, no record of the reason or reasons for an agreement, no record of a belated objection, if any, and no indication that Exhibit 11 was withdrawn from evidence. There is nothing of record, consequently, to assist this Court in its determination of whether the trial court erred. See, e.g., State v. Reasonover, 714 S.W.2d 706, 713 (Mo.App.1986). This Court is precluded from consideration on review of any facts not set forth in the approved transcript. Rule 81.12.
Moreover, and most significantly, Exhibit 11 in its entirety was admitted into evidence without objection and without limitation and was, therefore, lawful evidence. There was, therefore, no improper communication to the jury. There is no presumption of trial court error; thus, the burden is on appellant to demonstrate in what manner, if any, the trial court abused its discretion. Appellant has failed to meet his burden. Under the circumstances of this case, a mere claim of trial court error by failing to declare a mistrial on the basis of the jury's opportunity to view "it" or the "diary" is insufficient to demonstrate abuse of discretion.
The judgment is affirmed.
All concur.
NOTES
[1] Appellant's sole complaint with respect to the identification testimony is that the testimony of both Sudhoffs was inadmissible as a product of an impermissibly suggestive identification procedure. Appellant raises no claims with respect to the testimony, individually, nor offers any basis for its exclusion other than the allegedly suggestive identification.
[2] Exhibit 11 was not filed with the record on appeal; however, appellant makes specific references to Exhibit 11 in his argument and includes a copy of what appears to be the entire exhibit as an appendix to his brief. The state has not objected, and, in fact, has joined issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624906/ | 15 So. 3d 798 (2009)
Nan H. MULLINS, D.M.D., Petitioner,
v.
Alice TOMPKINS, Respondent.
No. 1D09-1148.
District Court of Appeal of Florida, First District.
July 21, 2009.
Rehearing Denied August 25, 2009.
*799 Michael W. Kehoe of Fuller, Johnson, Kehoe, Horky & Rettig, LLC, Pensacola, for Petitioner.
Brent F. Bradley of Kinsey, Troxel, Johnson, Walborsky & Bradley, P.A., Pensacola, for Respondent.
BENTON, J.
Nan H. Mullins, the defendant in a dental malpractice action filed by Alice Tompkins, petitions for a writ of certiorari. Dr. Mullins asks us to quash the trial court's order which denied her motion for protective order, and required instead that the materials in controversy be unsealed and provided to Ms. Tompkins, a former patient: The trial court ruled that Dr. Mullins had waived any attorney-client privilege or work product protection merely by sending the documents to her own expert. Persuaded that the trial court's ruling departs from the essential requirements of law and that its order would cause material harm that could not adequately be remedied on appeal, we grant the writ and quash the order.
In the normal course of discovery, Ms. Tompkins scheduled the deposition of C. Benson Clark, another dentist whom Dr. Mullins had listed as an expert witness. In preparation for the deposition, Ms. Tompkins caused a subpoena duces tecum to issue which directed Dr. Clark to produce *800 for the deposition his complete file, including all documents furnished to him by anyone. At the deposition, Dr. Clark testified that, in forming his opinion, he reviewed x-rays, photographs, transcripts of other depositions, and a model. Conceding other documents were in his possession, including the materials in controversy here, Dr. Clark testified that he had never read them.[1]
Dr. Mullins' counsel described the materials in controversy as letters from counsel (to Dr. Mullins and her malpractice insurer, whom he also represented) which included counsel's evaluations of claims and defenses; and as e-mails and other correspondence from Dr. Mullins to him in which she explained in detail and commented on Ms. Tompkins' care and treatment.
The parties agreed to seal the materials in controversy pending a ruling by the trial court, and Dr. Mullins promptly moved for a protective order to prevent their disclosure to Ms. Tompkins. Attached to the motion was Dr. Mullins' affidavit averring that she had never desired to waive any privileges applicable to the materials in controversy and that she had not even meant to send the materials to Dr. Clark, the expert. The trial court entered an order, however, ruling that, by negligently including the materials in controversy when she made the transmittal to her expert, Dr. Mullins had waived all applicable privileges, pursuant to section 90.507, Florida Statutes (2008). By petition for writ of certiorari, Dr. Mullins now asks this court to quash the order of the trial court.
To "obtain a writ of certiorari, there must exist `(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.'" Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla.2004) (quoting Bd. of Regents v. Snyder, 826 So. 2d 382, 387 (Fla. 2d DCA 2002)). "A petition for writ of certiorari is appropriate to review a discovery order when the order departs from the essential requirements of law," Metabolife Int'l, Inc. v. Holster, 888 So. 2d 140, 141 (Fla. 1st DCA 2004) (citing Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla.1995)), and would require disclosure negating a petitioner's legal privilege in "violation of a clearly established principle of law." Combs v. State, 436 So. 2d 93, 96 (Fla.1983).
The privileges at issue here are the attorney-client privilege[2] and the work *801 product privilege.[3] In her response to the petition for writ of certiorari, Ms. Tompkins concedes that "it is clear that ... the documents ... were ordinarily privileged under the attorney-client and/or work product privileges." The principle of law at issue here is that a party does not automatically waive any privilege simply by furnishing protected or privileged material to the party's own expert. See Fla. R. Civ. P. 1.280(b)(4)(B):
A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in rule 1.360(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
Even when the expert is to testify, opposing parties may be unable to discover privileged material that is not being offered as evidence. See Smith v. State, 873 So. 2d 585, 591 (Fla. 3d DCA 2004) ("We also hold that the act of disclosing it [privileged material] to an expert witness who would be testifying at trial does not alone waive the work product privilege."). But see Charles W. Ehrhardt & Matthew D. Schultz, Pulling Skeletons From the Closet: A Look Into the Work-Product Doctrine as Applied to Expert Witnesses, 31 Fla. St. U.L.Rev. 67, 83-89 (Fall 2003).
The trial court gave no indication it did not believe Dr. Clark's testimony that he had not even read the privileged documents, much less find that he had relied on them in any way. Even assuming that work product and privileged communications provided to an expert witness become discoverable[4] if used as a basis for the expert's opinion, see §§ 90.704-.705, Fla. Stat. (2008); Fla. R. Civ. P. 1.280(b); Northup v. Acken, 865 So. 2d 1267, 1270 (Fla.2004) ("[T]he scope of the attorney work product privilege protection is specifically bounded and limited to materials which are not intended for use as evidence *802 or as an exhibit at trial.... On the other hand, if the evidence or material is reasonably expected or intended to be disclosed to the court or jury at trial, it must be identified, disclosed, and copies provided to the adverse party in accordance with the trial court's order and the discovery requests of the opposing party."); but see Lovette v. State, 636 So. 2d 1304, 1308 (Fla. 1994) ("[T]he state cannot elicit specific facts about a crime learned by a confidential expert through an examination of a defendant unless that defendant waives the attorney/client privilege by calling the expert to testify and opens the inquiry...."), there has been no such showing here.
In the present case, the trial court did not address the question of whether Dr. Clark used the materials in controversy in reaching his opinion. The trial court therefore departed from the essential requirements of law when it ruled that Dr. Mullins waived her attorney-client privilege or work product protection solely by virtue of the fact that she turned over inadvertently, as far as can be told from this recordthe materials in controversy to an expert witness.
The petition for writ of certiorari is granted, and the order under review is quashed.
WEBSTER and ROBERTS, JJ., concur.
NOTES
[1] The order under review does not reject this uncontroverted testimony.
[2] The privilege is codified in section 90.502(2), Florida Statutes (2008): "A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client." Pursuant to section 90.502(1)(c), Florida Statutes (2008), "[a] communication between lawyer and client is `confidential' if it is not intended to be disclosed to third persons other than: 1. Those to whom disclosure is in furtherance of the rendition of legal services to the client. 2. Those reasonably necessary for the transmission of the communication." Section 90.507, Florida Statutes (2008), provides: "A person who has a privilege against the disclosure of a confidential matter or communication waives the privilege if the person ... voluntarily discloses or makes the communication when he or she does not have a reasonable expectation of privacy, or consents to disclosure of, any significant part of the matter or communication. This section is not applicable when the disclosure is itself a privileged communication." The parties do not dispute the applicability of the privilege, if it has not been waived.
[3] The parties do not dispute the applicability of the work product privilege to much of the material in controversy, if it has not been waived. This privilege, which is not absolute, is described in Florida Rule of Civil Procedure 1.280(b)(3), which provides in part:
Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that party's representative, including that party's attorney, consultant, surety, indemnitor, insurer, or agent, only upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
Subdivision (b)(4), which deals specifically with discovery in relation to expert witnesses, provides that "[d]iscovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule [i.e., relevant and not privileged] and acquired or developed in anticipation of litigation or for trial, may be obtained" by the procedure set forth in the subdivision.
[4] See Smith v. State, 873 So. 2d 585, 590 (Fla. 3d DCA 2004) ("[M]aterials lose their privileged status and are discoverable when they are intended to be used at trial. We have been given no indication, however, that the disputed materials here ... are reasonably expected or intended to be used at trial. If they are, we would of course agree that they are discoverable."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624924/ | 522 So. 2d 989 (1988)
Central BELL, Appellant,
v.
STATE of Florida, Appellee.
No. 87-28.
District Court of Appeal of Florida, First District.
March 25, 1988.
Rehearing Denied May 2, 1988.
*990 Michael E. Allen, Public Defender and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Elizabeth Masters, Asst. Atty. Gen., Tallahassee, for appellee.
WIGGINTON, Judge.
Appellant appeals his resentence, upon remand from this Court,[1] for a 1985 unarmed robbery conviction. He challenges the reason set forth by the trial court for exceeding the recommended guidelines range and the court's failure to grant specific credit for time served in the resentencing order. We affirm the resentencing order but remand for corrections.
On remand, the trial judge based his departure on "vulnerability of the victim," determining that appellant's crime of snatching a purse from an elderly woman, causing her substantial injury, was not just an ordinary "purse snatching" but was a brutally violent robbery of a senior citizen who was more likely to suffer physical injury as a result of his crime. Contrary to appellant's position, vulnerability of the victim, such that the degree of suffering from physical or psychological injury is increased by reason of the advanced age, frailty, or helplessness of the victim, is a valid reason for departure. Lewis v. State, 496 So. 2d 211 (Fla. 1st DCA 1986); Hadley v. State, 488 So. 2d 162 (Fla. 1st DCA 1986); Von Carter v. State, 468 So. 2d 276 (Fla. 1st DCA 1985); Harris v. State, 482 So. 2d 548 (Fla. 4th DCA 1986); Byrd v. State, 516 So. 2d 107 (Fla. 4th DCA 1987). The circumstances of the instant case clearly fall within an acceptable "vulnerability of the victim" departure which is distinct from the "victim injury" factor, and the trial judge herein adequately set forth in his order the factors supporting that conclusion.
In the previous appeal as well as in the instant case, the parties have agreed that victim injury was improperly factored onto appellant's scoresheet since victim injury is not an element of the offense at conviction. Fla.R.Crim.P. 3.701(d)7 (1985).[2] Appellant asserts that the present reason given amounts to a departure based on victim injury, which was in fact scored, and therefore is not a proper ground for departure at this juncture. Casteel v. State, 498 So. 2d 1249 (Fla. 1986). We disagree. As discussed above, vulnerability of the victim, under proper circumstances, may support departure aside from the victim injury factor. However, since the scoring of points for victim injury undisputedly was error, we remand for correction thereof by removal of the fourteen points for victim injury from the scoresheet. The record indicates that the improper scoring did not affect the trial judge's decision to depart. Therefore, a remand pursuant to Albritton v. State, 476 So. 2d 158 (Fla. 1985) is unnecessary.
*991 Appellant relies upon Schull v. Duggar, 515 So. 2d 748 (Fla. 1987), for the apparent proposition that the trial court was required to sentence within the guidelines on remand. In Schull, the court stated that when all reasons supporting departure are found to be invalid, on remand a trial court may not enunciate new reasons for departure but must sentence within the guidelines. Schull is not applicable to the instant case because in ordering remand previously, this Court did not find that all of the reasons given for departure were improper but merely found a major reason for departing was improper. The "vulnerability of the victim" reason for departure was also set forth in the first sentencing order and thus, when relied upon in the order on remand, it was not a new departure reason on resentencing.
In the Uniform Commitment to Custody, the trial judge failed to set forth specifically the jail time credit to which appellant is entitled from the time of his commitment until the time of entry of the order on appeal. Therefore, we remand with directions that the sentence be amended to state with specificity the proper amount of credit to be given for time served. See Franklin v. State, 515 So. 2d 400 (Fla. 1st DCA 1987).
AFFIRMED but remanded with directions.
BOOTH and ZEHMER, JJ., concur.
NOTES
[1] Bell v. State, 500 So. 2d 217 (Fla. 1st DCA 1986).
[2] We note that in Florida Rules of Criminal Procedure, 509 So. 2d 1088 (Fla. 1987), rule 3.701(d)7 was amended to provide that victim injury "shall be scored for each victim physically injured during a criminal episode or transaction." That amendment is not applicable in the instant case since it had not been adopted at the time of the April 1987 resentencing. See n. 2 in Mathis v. State, 515 So. 2d 214 (Fla. 1987). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624931/ | 769 S.W.2d 427 (1989)
Frank GUINAN, Movant,
v.
STATE of Missouri, Defendant.
No. 70810.
Supreme Court of Missouri, En Banc.
April 18, 1989.
Rehearing Denied May 16, 1989.
Thomas J. Marshall, Public Defender, Moberly, for movant.
*428 William L. Webster, Atty. Gen., Daryl L. Hylton, Asst. Atty. Gen., Jefferson City, for defendant.
WELLIVER, Judge.
Appellant Frank Guinan appeals from the trial court's denial of post conviction relief pursuant to Rule 27.26 following a sentence of death for first degree murder. State v. Guinan, 732 S.W.2d 174 (Mo.banc 1987). The trial court conducted an evidentiary hearing and made and entered findings of fact, conclusions of law, and entered judgment denying appellant's motion.
Our review of the hearing court's actions is limited to a determination of whether that court's findings, conclusions, and judgment are clearly erroneous. Such findings and conclusions are deemed clearly erroneous only if, after a review of the entire record, the appellate court is left with the "definite and firm impression that a mistake has been made." Sanders v. State, 738 S.W.2d 856, 857 (Mo.banc 1987). Finding no error, we affirm the judgment of the trial court.
Appellants allegations of error involve four areas; the ineffectiveness of his trial counsel, the errors of the trial court, certain statements made by the prosecutor, and the use of closed circuit television in his 27.26 hearing.
I. Ineffectiveness of Counsel
In reviewing appellant's allegations regarding his trial counsel, we focus on (1) counsel's performance, and, (2) whether prejudice resulted from counsel's alleged breach of duty. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063-64, 80 L. Ed. 2d 674 (1983). We need not determine whether counsel's performance was deficient before examining the prejudice prong. If it is easier to dispose of an ineffectiveness claim on the ground of lack of prejudice, that course should be followed. Id., at 697, 104 S.Ct. at 2069-70. Our court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance..". Id, at 689, 104 S.Ct. at 2065. Appellant bears the burden of proving his grounds by a preponderance of the evidence. Stevens v. State, 560 S.W.2d 599 (Mo.App.1978). Defendant's counsel "is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066.
A. The Affidavit
Appellant's first allegation concerns an irreconcilable conflict between him and counsel. According to appellant, counsel signed an affidavit for the Attorney General's office relating to a civil suit appellant filed in the Federal Court. This affidavit allegedly violated appellant's trust in counsel, because it violated the loyalty requirement of an attorney-client relationship, and put counsel in conflict with his client.
The hearing court found that no affidavit surfaced at appellant's trial, and in fact no affidavit has ever surfaced in any proceeding, either this one or the Federal Court case for which it was allegedly prepared. The hearing court further found appellant proceeded to trial with no complaint about his counsel. An irreconcilable conflict exists when there is a total breakdown of communication between attorney and client. State v. Smith, 586 S.W.2d 399 (Mo.App.1979). This was not the case here.
B. Change of Venue
Appellant's next claim of error alleges counsel was ineffective for failing to pursue a change of venue motion filed prior to trial. Counsel testified at the hearing that his decision not to pursue the change of venue motion was due in part to the likelihood of the trial being moved to a county which had returned death penalties in cases that had been transferred to them. Counsel further testified that his decision was based upon the fact that several groups in Cole County actively oppose the death penalty, and are active in promoting the rights of prisoners. His decision not to pursue the motion was also based on his belief it would not be possible to draw a more favorable jury than in the county where crime in prison is "not a noteworthy *429 happening." The hearing court further found appellant had agreed to withdraw the motion after consideration of the above factors. We find no error.
C. Psychiatric Examination
Appellant's next claim is that counsel was ineffective for failing to request a mental examination and failing to secure expert psychiatric testimony. Appellant ignores the facts as determined by the hearing court that counsel reviewed reports gathered on appellant from earlier cases, and had appellant examined by Dr. A.E. Daniels. Counsel reasonably concluded there was no evidence to support a belief of mental impairment, defect or disease.
Appellant presented no credible evidence at the hearing to support his claim. "Conjecture or speculation is not sufficient to establish the required prejudice." Hogshooter v. State, 681 S.W.2d 20, 21-22 (Mo. App.1984). We find no evidence of ineffective representation in this respect.
D. Failure to Investigate Witnesses
Appellant's next claim alleges counsel was ineffective for failing to interview and investigate several inmate witnesses suggested by appellant, and for not calling them at trial. The witnesses were all death row inmates: Robert Driscoll, Robert O'Neal, Richard Zeitvogel, and Emmett Nave. The hearing court found all the witnesses had been interviewed either by counsel or members of the defense team. Counsel discovered in interviewing the witnesses that they wished to testify that appellant was acting in self-defense. Undisputed evidence at the trial showed the victim was handcuffed with his hands behind his back at the time of the stabbing. Counsel rejected the inmate's line of testimony for fear of incensing and exciting the jury. To establish ineffective assistance, Appellant has to establish the other witness's testimony would have provided Appellant with a viable defense. Hogshooter, supra, at 21. The hearing court properly concluded there was no proof of ineffective representation in this respect.
E. Non-Attendance at the Second Phase
Appellant's next claim of error involves the punishment phase of the trial. Appellant argues counsel was ineffective in not requesting a recess after the guilt phase had ended. The jury returned a verdict of guilt on the evening of the second day of the trial, after which there was an evening session for determination of punishment. Appellant did not attend the punishment phase of the trial, and now claims this was due to illness. The trial judge and the prosecutor questioned appellant extensively about his desire to leave the punishment phase, and appellant's counsel repeatedly urged him to stay. In spite of all this, appellant chose to leave. There was no indication that during the trial appellant was ill. Counsel is not ineffective simply because he accedes to his client's wishes, regardless how mistaken counsel believes those wishes to be. State v. Thomas, 625 S.W.2d 115, 123 (Mo.1981).
II. Alleged Trial Court Errors
Appellant's allegations of trial court error correspond in large part to the claims of ineffective assistance of counsel. Specifically, appellant argues 1) the trial court was in error for not removing counsel based upon the alleged conflict of interest, 2) not ruling on the change of venue motion, 3) allowing appellant to return to jail during the punishment phase of trial, 4) allowing evidence of a former murder committed by appellant to be presented to the jury in the punishment phase, and 5) allowing the prosecutor to make certain statements during the closing argument. Allegations 1, 2, and 3 are disposed of in Point I above.
Points 4 and 5 were decided against appellant in the direct appeal, and we will not again review them here. Guinan, supra, at 178.
III. Closed Circuit Television Hearing
Appellant's final claim involves the use of two way closed circuit television in the post conviction hearing. Specifically appellant argues the use of the closed circuit *430 television violated his right to confrontation, equal protection, due process and effective representation. Similar arguments were heard in State ex rel. Turner v. Kinder, 740 S.W.2d 654 (Mo.banc 1987). Kinder was a consolidated case involving three inmates, two who had been arraigned and one who had undergone preliminary examination conducted via audiovisual hookup between the courtroom in the Cole County Courthouse and the conference room in the Penitentiary. Section 546.030, RSMo 1986, provided that the person pleading guilty be "personally present". Section 544.250, RSMo 1986, prohibited an information from being filed charging a person with a felony unless the person received a preliminary examination "before some associate circuit judge". Section 544.270, RSMo 1986, provided that the associate judge before whom any person was brought shall proceed to examine the complainant and witnesses produced in support of the prosecution, on oath, in the presence of the prisoner on the offense charged. This Court in Kinder refused to expand the plain meaning of the statutes in question to include the use of audiovisual technology to satisfy the "in person" and "before an associate judge" statutory requirements where the legislature had not evidenced any intention of permitting such an expansion.
In response to Kinder, the General Assembly passed and presented to the Governor § 561.031, RSMo 1986, on March 1, 1988. It reads:
1. In the following proceedings, the provisions of section 544.250, 544.270, 544.275, RSMo, 564.03 RSMo, or of any other statute, or the provisions supreme court rules 21.10, 22.07, 24.01, 24.02, 27.01, 29.07, 31.02, 31.03, 36.01, 37.16, 37.47, 37.48, 37.50, 37.57, 37.58, 37.59, and 37.64 to the contrary notwithstanding, when the physical appearance in person in court is required of any person held in a place of custody or confinement in any city not within a county or in any county in which there is located a place of custody or confinement operated by the department of corrections and human resources, such personal appearance may be made by means of closed circuit television from the place of custody or confinement: provided that such television facilities provide two-way audiovisual communication between the court and the place of custody or confinement and that a full record of such proceedings by made by split screen imaging and recording of the proceedings in the courtroom and the place of confinement or custody in addition to such other record as may be required:
(1) First appearance before an associate circuit judge on a criminal complaint;
(2) Waiver of preliminary hearing;
(3) Arraignment on an information or indictment where plea of not guilty is entered;
(4) Arraignment on an information or indictment where a plea of guilty is entered upon waiver of any right such person might have to be physically present;
(5) Any pretrial or posttrial criminal proceeding not allowing the cross-examination of witnesses;
(6) Sentencing after conviction at trial upon waiver of any right such person might have to be physically present;
(7) Sentencing after entry of a plea of guilty; and
(8) Any civil proceeding other than trial by jury.
2. This section shall not prohibit other appearances via closed circuit television upon waiver of any right such persons held in custody or confinement might have to be physically present.
(Emphasis added.)
A Rule 27.26 post-conviction proceeding is a civil proceeding, and the Sixth Amendment applies only during the pendency of the criminal case, not to the motion under Rule 27.26. Williams v. State of Missouri, 640 F.2d 140, 144 (8th Cir.1981), cert, denied, 451 U.S. 990, 101 S. Ct. 2328, 68 L. Ed. 2d 849 (1981); State v. Edmondson, 438 S.W.2d 237, 242 (Mo.1969). But, given the *431 quasi-criminal nature of the 27.26 hearing, we have examined the record and the tape and have fully satisfied ourselves that no constitutional violation is present.
Appellant was present, along with counsel and inmate witnesses, at the prison. The Judge, attorney for the State, and other witnesses were present in the Cole County Courthouse. They were connected by an audiovisual two way hookup. Appellant was represented by counsel, could present witnesses in his behalf, and could cross-examine the State's witnesses.
The hearing court complied with the terms of the statute by making and keeping a copy of the proceeding. In viewing the tape, we note the defendant was able to confer privately with his counsel, the cameras used provided a clear picture of the witnesses, examiners, and others present during the proceedings, and the cameras clearly and effectively conveyed both the text and the content of the testimony and the demeanor of the persons testifying. We find no diminution of our traditional standards of fair trial resulting from injecting the video cameras into the proceeding.
In Kinder I suggested:
Today split screen video appears to be an acceptable means of conducting the commercial business of the world, of conducting affairs between nations, of conducting political debate, of conducting the process of education, of communicating all forms of artistic pursuit, and for communicating to us the news of the world.
Kinder, supra, at 658 (Welliver, J. dissenting). We see no reason why video should not now be an acceptable means of conducting court business when done pursuant to the guidelines of § 561.031, RSMo 1986.
Having found no error in the findings or conclusions of the trial judge, the denial of appellant's Rule 27.26 post-conviction motion is affirmed.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624953/ | 522 So. 2d 227 (1988)
STATE of Mississippi
v.
Jeffrey Allen BRADFORD.
No. 57550.
Supreme Court of Mississippi.
March 16, 1988.
Cono A. Caranna, II, Dist. Atty., Margaret Alfonso, Asst. Dist. Atty., Gulfport, for appellant.
Carol L. Henderson, Gulfport, for appellee.
Before ROY NOBLE LEE, C.J., and ROBERTSON and ZUCCARO, JJ.
ZUCCARO, Justice, for the Court:
On January 29, 1986, the appellee entered a guilty plea to the crime of escape and he was sentenced to six (6) months in the custody of the Harrison County Jail as an habitual offender pursuant to Miss. Code Ann. § 97-9-49(2) (Supp. 1985) and Miss. Code Ann. § 99-19-81 (Supp. 1985). This appeal was initiated by the State of Mississippi as a result of the decision of the lower court to sentence the appellee under Miss. Code Ann. § 97-9-49(2) (Supp. 1985) rather than Miss. Code Ann. § 97-9-49(1) (Supp. 1985).
In an indictment filed on or about September 26, 1985, the appellee, Jeffrey Allen Bradford, was charged with escape under Miss. Code Ann. § 97-9-49 (Supp. 1985). He pled guilty and was sentenced to six (6) months under Miss. Code Ann. § 97-9-49(2) (Supp. 1985) said sentence to run consecutively with two (2) five (5) year sentences, also running consecutively with each other, for robbery.
The facts surrounding the so-called escape are as follows. The appellee was a "trusty" in the Harrison County Jail. He was working at the Sheriff's Office Service Station which is about a mile and a half from the jail itself. The appellee had been granted permission to leave the service station on previous occasions but not on the day of the so-called escape. He had been drinking beer with friends when he remembered his ill-fated wedding plans which were interrupted by his incarceration. He decided to go visit his girl friend in Florida and he stayed there for a full month until the authorities apprehended him and returned him to Gulfport.
There is no dispute that at the time of the escape the appellee was lawfully confined at the Harrison County Jail as a result of the penitentiary sentences which had been previously imposed on him. It is also uncontradicted that the appellee was assigned by the authorities of the sheriff's department to work at the sheriff's office service station at the time of the escape. *228 In other words he was entrusted to leave the jail by authorized persons and directed to the service station and it was from this authorized departure and place that the appellee failed to return to the jail.
Appellant State of Mississippi assigns as error that the lower court erred in sentencing the appellee under Miss. Code Ann. § 97-9-49(2) (Supp. 1985) instead of Miss. Code Ann. § 97-9-49(1) (Supp. 1985).
Miss. Code Ann. § 97-9-49 (Supp. 1985) reads as follows:
(1) Whoever escapes or attempts by force or violence to escape from any jail in which he is confined, or from any custody under or by virtue of any process issued under the laws of the State of Mississippi by any court or judge, or from the custody of a sheriff or other peace officer pursuant to lawful arrest, shall, upon conviction, if the confinement or custody is by virtue of and arrest on a charge of felony, or conviction of a felony, be punished by imprisonment in the penitentiary not exceeding five (5) years to commence at the expiration of his former sentence, or, if the confinement or custody is by virtue of an arrest of or charge for or conviction of a misdemeanor, be punished by imprisonment in the county jail not exceeding one (1) year to commence at the expiration of the sentence which the court has imposed or which may be imposed for the crime for which he is charged.
(2) Anyone confined in any jail who is entrusted by any authorized person to leave the jail for any purpose and who wilfully fails to return to the jail within the stipulated time, or after the accomplishment of the purpose for which he was entrusted to leave, shall be considered an escapee and may be punished by the addition of not exceeding six (6) months to his original sentence.
At the time of appellee's escape he had been lawfully confined in the Harrison County Jail as a result of the penitentiary sentences which had previously been imposed.
Appellant argues that in analyzing the facts of the case at issue under Miller v. State, 492 So. 2d 978 (Miss. 1986), the appellee can only be sentenced under § 97-9-49(1). The appellant's reasoning being that Bradford made 1) "a knowing and voluntary departure" 2) "from lawful custody" 3) "with the intent to evade the due course of justice" pursuant to Miss. Code Ann. § 97-9-49(1). Miss. Code Ann. § 97-9-49(2) contemplates an involuntary departure involving situations such as an inmate being assigned to leave jail for a particular purpose.
The appellee was assigned to work at the sheriff's office gas station which was one and one-half miles away from the jail premises. This assignment constitutes an involuntary departure contemplated by Miss. Code Ann. § 97-9-49(2) (Supp. 1985) from the jail to the service station. It was from this assignment to the service station that the appellee voluntarily departed and failed to return to the jail.
Boudreaux v. State, 412 So. 2d 241 (Miss. 1982) involved an inmate in the Lauderdale County Jail of semi-trusty status. The inmate left the county jail to carry an officer's car to the service station. He left the car at the service station, called his girl friend and went for a ride with her from which he did not return. In Boudreaux the Court determined that appellant "willfully failed to return to the jail within the stipulated time, or after the accomplishment of the purpose for which he was entrusted to leave." Boudreaux at 243. In conformity with such willful failure to return from an authorized departure rather than the jail itself this Court held that it must apply Miss. Code Ann. § 97-9-49(2) and therefore impose a sentence not exceeding six (6) months to his original sentence.
Similarly, in the instant case Bradford was entrusted by an authorized person to leave the jail on a particular errand, that is to the sheriff's office service station where he worked. It was from this authorized departure that he failed to return. This *229 failure to return constitutes escape pursuant to Miss. Code Ann. § 97-9-49(2). Therefore, the lower court did not err in sentencing the appellee under Miss. Code Ann. § 97-9-42(2) as opposed to Miss. Code Ann. § 97-9-42(1). We affirm.
AFFIRMED.
ROY NOBLE LEE, C.J., HAWKINS and DAN M. LEE, P.JJ., and PRATHER, ROBERTSON, SULLIVAN, ANDERSON and GRIFFIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2402595/ | 87 N.J. Super. 1 (1965)
207 A.2d 699
AMERICAN CAN COMPANY, A NEW JERSEY CORPORATION, APPELLANT,
v.
DIRECTOR OF THE DIVISION OF TAXATION, RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Argued January 11, 1965.
Decided March 1, 1965.
*3 Before Judges CONFORD, KILKENNY and LEWIS.
Mr. William D. Hardin argued the cause for appellant (Messrs. Pitney, Hardin & Kipp, attorneys; Mr. James J. Petrella, on the brief).
Mr. Alan B. Handler, First Assistant Attorney General, argued the cause for respondent (Mr. Arthur J. Sills, Attorney General of New Jersey, attorney).
The opinion of the court was delivered by CONFORD, S.J.A.D.
This is an appeal by American Can Company ("American Can," or "taxpayer," hereinafter) from a judgment of the Division of Tax Appeals sustaining as valid a redetermination by the Corporation Tax Bureau of the State Division of Taxation, on behalf of the Director thereof, of taxpayer's franchise tax liability for the privilege year 1959 (as of December 31, 1958), incurred pursuant to the Corporation Business Tax Act (1945), N.J.S.A. 54:10A-1 et seq. Of the additional tax of $5,678.80 thus assessed, this appeal *4 involves only the sum of $4,215.57, which was attributable to the addition by the Director to the taxpayer's reported net worth of a $20,300,001 "reserve for deferred income taxes" (for the corporation and its covered subsidiaries), shown on the taxpayer's books as a liability. The action of the Corporation Tax Bureau was stated as follows: "Reserve for Deferred Income Taxes is deemed to be a surplus reserve and includible in net worth for franchise tax purposes."
The reserve in question arises from the following circumstances. As permitted by section 167(b) of the Internal Revenue Code of 1954 (and similar provisions of Canadian income tax laws), American Can and certain of its subsidiaries had, for income tax purposes only, been using accelerated methods of depreciation of machinery and equipment. At the same time, as permitted by the Internal Revenue Service (Rev. Rul. 59-389, 1959-2 Cum. Bull. 89), the company had used normal straight-line methods of depreciation for general reporting purposes on its books of account. In the normal course of events, and other factors being equal, accelerated depreciation for income tax purposes results in abnormal reductions of income taxes during the early portion of the depreciable life of an asset but in abnormal increases of such taxes in the later portion thereof because the asset then permits of less than normal depreciation in consequence of the excessive depreciation taken in the earlier period.
The uncontradicted expert accountancy testimony in this case is to the effect that a corporation taking accelerated depreciation for income tax purposes but at the same time straight-line depreciation for purposes of general reporting on its books of account, must, under generally accepted accounting practices, show a reserve on the liabilities side of the balance sheet for the presumptive deferred income taxes mentioned above. The reserve disputed in this case was such a reserve, set up on the liabilities side of the general books of account of American Can as of the close of the calendar year 1958 at the direction of Lybrand, Ross Brothers and *5 Montgomery, independent auditors of the corporation. It was calculated, as concededly normal accounting practice then required, by taking 52% of the total amount of difference between depreciation expense based upon accelerated depreciation and depreciation expense based upon straight-line depreciation, the 52% rate being the then current total income tax rate applicable to the corporation's net income. Walter R. Staub, partner of the Lybrand firm in charge of the American Can account, testified that such a reserve is necessary for "a fair matching of costs and revenues in accepted accounting principles"; that without it he could not have given a "clean opinion" on the audit, i.e., "without qualification as to acceptability of the accounting principles followed in their preparation"; and that the item cannot be included in net worth in the guise of a surplus reserve or otherwise without violation of such principles. He further testified that both the standards of the American Institute of Accountants and the regulations of the Securities and Exchange Commission require the exclusion of such an item from net worth in a corporate balance sheet, either by a reserve on the liability side, as on the instant American Can balance sheet, or by additional depreciation reserves on the asset side.
Arthur F. Wilkins, a certified public accountant associated with Haskins & Sells, testified essentially in support of the conclusions and opinions given by Staub. There was no contradiction of that testimony by either of the witnesses for the Director of the Division of Taxation. There can be not the slightest doubt of the correctness of the accounting principles enunciated by the taxpayer's witnesses, in terms of generally accepted accounting principles and practice, in relation to the specific treatment by American Can of the reserve for deferred income taxes on its December 31, 1958 balance sheet. See Accounting Research Bulletin No. 44 (Revised) of American Institute of Accountants (July 1958); Supplementary Letter of August 1959; Securities and Exchange Commission, Accounting *6 Series Release No. 85 (February 29, 1960)[1]; Amory and Hardee, Materials on Accounting (3d ed., Herwitz and Trautman 1959), pp. 261-270.
A representative of the Corporation Tax Bureau, not qualified as an accountant, explained its transfer of the American Can reserve for deferred taxes to net worth as a "surplus reserve" as follows: "The Bureau made the redetermination with what we feel is sound accounting, by merely considering the reserve as set up to be not a liability, not a true liability, and, at best, a contingent liability which will not be paid out within any immediate foreseeable future." The witness conceded on cross-examination that the State's treatment of the reserve was contrary to the policy of the American Institute of Accountants as formalized in its Accounting Research Bulletin No. 44 (Revised), supra.[2] The Institute's Supplementary Letter, supra, interpreting that Bulletin, states: "A provision in recognition of the deferral of income taxes, being *7 required for the proper determination of net income, should not at the same time result in a credit to earned surplus or to any other account included in the stockholders' equity section of the balance sheet." The Bulletin as a whole indicates that simultaneous use of accelerated depreciation for income tax purposes and straight line depreciation for ordinary financial reporting constitutes a typical situation requiring creation of the "provision in recognition of the deferral of income taxes" mentioned.
The argument in defense of the State's treatment of the disputed reserve for franchise tax purposes submitted on this appeal is essentially as follows. There was no fixed liability as of December 31, 1958 for the projected future income taxes supporting the deferral reserve. The fact or amount of such future taxes was conjectural and uncertain, depending upon such unknown factors as continuation unchanged of existing federal income tax laws and rates; the earning by the company of a net profit in future years; absence of later enlargement, by additions, of the company's depreciable plant, since such growth would postpone, perhaps indefinitely, the anticipated later loss of normal asset depreciation because accelerated depreciation on newly added plant would replace anticipated fall-off of depreciation on older assets (described as "rollover" by the taxpayer's experts); and the like. In the meantime, argues the State, the taxpayer has completely unrestricted use of the funds represented by the "reserve." Were the corporation to have liquidated on December 31, 1958, the whole reserve would be equity capital, free of any federal tax claim, and available for distribution to stockholders.
Resolution of the controversy before us calls for close attention to the statute, its history and rationale and the interpretive decisions.
N.J.S.A. 54:10A-5 imposes a state franchise tax computed upon that portion of the "entire net worth" of the corporation allocable to this State, multiplied by the applicable rates. N.J.S.A. 54:10A-4 defines "net worth" as follows:
*8 "(d) `Net worth' shall mean the aggregate of the values disclosed by the books of the corporation for (1) issued and outstanding capital stock, (2) paid-in or capital surplus, (3) earned surplus and undivided profits, (4) surplus reserves which can reasonably be expected to accrue to holders or owners of equitable shares, not including reasonable valuation reserves, such as reserves for depreciation or obsolescence or depletion, and (5) the amount of all indebtedness owing directly or indirectly to holders of 10% or more of the aggregate outstanding shares of the taxpayer's capital stock of all classes, as of the close of a calendar or fiscal year. However, if in the opinion of the commissioner, the corporation's books do not disclose fair valuations the commissioner may make a reasonable determination of the net worth which, in his opinion, would reflect the fair value of the assets carried on the books of the corporation, in accordance with sound accounting principles, and such determination shall be used as net worth for the purpose of this act." (Emphasis added)
The act was changed in certain respects, effective beginning with the year 1959, L. 1958, c. 63, but the definition of "net worth" was not altered.
The object and background of this tax statute, as enacted in 1945 as the Corporation Business Tax Act (1945) (L. 1945, c. 162), have been fully detailed in United States Steel Corp. v. Director, Div. of Tax., 38 N.J. 533, 539-541 (1962); R.H. Macy & Co., Inc. v. Director, Div. of Taxation, 77 N.J. Super. 155, 165-167 (App. Div. 1962), affirmed o.b. 41 N.J. 3 (1963) (hereinafter referred to as "Macy"). We pointed out in Macy, after considering the legislative history of the statute: (77 N.J. Super., at pp. 166-167)
"From a consideration of all the foregoing, it is apparent that as finally enacted and as the act stood in relation to the tax years in question, the Legislature was concerned with providing a relatively simple and administratively feasible formula for measuring the value of the exercise of the corporate privilege in this State. It chose to do so by using basically the taxpayer's net book worth rather than becoming enmeshed in the complexities and administrative difficulties attendant upon true value or market value appraisal of assets for that purpose, a technique more characteristic of ad valorem property taxation than of franchise taxation."
The key to the determination of the present case is the proper significance to be accorded the statutory language, "in accordance with sound accounting principles," as employed *9 in the authorization by N.J.S.A. 54:10A-4 for the Commissioner (now the Director, Division of Taxation) to make a "reasonable determination of the net worth which, in his opinion,[3] would reflect the fair value of the assets carried on the books of the corporation, in accordance with sound accounting principles."
In Macy we stated, in reference to the foregoing (77 N.J. Super., at p. 167):
"* * * the face of section 54:10A-4 conveys the thought that the net worth of the assets appearing on the books of a particular corporate taxpayer may represent something other than `fair valuations' thereof, and that the Tax Director may in such case, in assessing the franchise tax, revise the book figures to reflect `fair value of the assets,' providing, however, that his resulting readjustment of the figures is `in accordance with sound accounting principles.'" (Emphasis added)
Examples (by no means exhaustive) of what the Director might properly do in the exercise of his powers consistently with the restrictive anchor of adherence to sound accounting principles are afforded by the Macy case. For one thing, we there held that the Director might re-evaluate the inventory of a department store by using the "Fifo" rather than the "Lifo" method of costing inventory valuations. The valuation justification for the Director's action there approved was that Fifo produced inventory costs more nearly proximate to the assessing date than did Lifo. But we were at pains to point out that the use of either the Fifo or Lifo method was consistent with sound accounting principles under the expert proofs in that case. (77 N.J. Super., at pp. 163, 170.) It was implicit in the Macy opinion, however, that since proper accounting practice would require the corporation to adhere to whichever method it employed, Lifo or Fifo, over certain periods of time, the Director, also, in auditing returns of the corporation for franchise tax purposes, would, if he elected to *10 substitute Fifo for Lifo methods of valuing inventory, be likewise required to adhere to Fifo for such periods of time as required by sound accounting practice. He would be precluded from jumping at will in successive franchise tax years from Lifo to Fifo for a given taxpayer since sound accounting practice, in the sense of generally accepted accounting principles, would preclude the corporation itself from doing so.
So, too, in Macy, we upheld the Director's right to revise downward the taxpayer's book reserve for bad debts, finding the amount determined for this purpose by the Director to be reasonable, "consistent with sound accounting principles." (77 N.J. Super., at p. 172). Generally accepted accounting practice permitted a reserve for bad debts, but did not provide any fixed formula for determination of the amount thereof. Certain relevant guiding criteria were recognized, but the judgment of the Director as to the proper amount of the reserve, if not arbitrary, could be substituted for that of the corporation, entirely consistently with sound accounting principles. Ibid. By contrast, there is no dissent in the present case that proper accounting practice, in setting up a reserve for deferred taxes because of general purpose accounting on a straight-line depreciation basis contemporaneous with computation of income taxes by use of accelerated depreciation, requires the fixing of the amount of the reserve at the tax dollar (income tax) saving produced by applying the current income tax rate against the gross difference in depreciation reflected by the respective different depreciation rate schedules. What the Director contends for here is his right to eliminate the entire deferred tax reserve from the liability side of the corporate balance sheet and to incorporate it into surplus, thereby enlarging net worth. That this is proscribed by generally accepted accounting principles, and was, as of December 31, 1958, is indubitable from the record of this case.
We pause to point out that the testimony of an independent certified public accountant produced by the State before the Division of Tax Appeals does not help the Director's position. This expert conceded that what the Director *11 had here done could not be defended under "generally accepted accounting principles," but he attempted to formulate a distinction between that concept and that of "sound accounting principles." The latter concept, he testified, would justify placing the reserve here involved in net worth if one were preparing a financial statement for purposes of liquidation of the corporation or sale of its assets. It is obvious, however, that a financial statement for such a special purpose is totally irrelevant to the status of a going corporation for purposes of administering a franchise tax statute one which taxes the benefit of exercise in this State of the corporate franchise for the privilege year succeeding the assessing date as of which the net worth is taken from the books of the corporation. See United States Steel Corp. v. Director, Div. of Tax., supra (38 N.J., at pp. 540-541). The State has not relied on that purported distinction by its expert on this appeal.
In any event, we entertain no doubt that the statutory phrase, "sound accounting principles," is and was intended to be substantially synonymous with "generally accepted accounting principles," the term generally used by the accounting profession. See Wixon and Cox, Principles of Accounting (1961), pp. 5-6.[4] We so assumed in the Macy case. The State has not argued the contrary on this appeal.
Rather, the State's emphasis on this appeal is that the term, "in accordance with sound accounting principles," is to be interpreted "within the meaning and intendment of the Corporation Business Tax Act." With that general proposition one must agree. Indeed, all statutory language must be read and understood in the light of the purposes and objects of the particular statute. Thus, for example, an argument purportedly geared to sound accounting principles would not be permitted to sanction the result of total avoidance of the tax for a given year in respect of subsidiaries merged into the *12 corporation at midnight of the last day of the base year. United States Steel Corp. v. Director, Div. of Tax., supra (38 N.J., at p. 537).
As to the argument that adherence by the taxpayer's books to sound accounting principles does not necessarily insulate the net worth reflected thereby from redetermination by the Director, that proposition is, of course, the lesson of Macy. But the State fails to present a tangible rational reason why we should not here, as we recognized as necessary in Macy, impose the limitation plainly written into the statute that any redetermination of net worth by the Director must of itself pass muster as comporting with sound accounting principles in the sense that the accounting profession would understand that term. In the name of interpretation "for purposes of the act" we are here asked, in effect, to ignore a plain, unambiguous and express proviso of the statute. And this for no other reason than that the Director regards a deferred tax reserve, which sound accounting practice requires to be reflected in the balance sheet lest a corporation present a misleading picture of its financial posture, as merely contingent.
As to the contingency of the reserve, or the degree thereof, the Director may or may not be theoretically correct were we permitted to examine that concept a priori and free from the restrictions of the statute. But in terms of whether any such contingency permitted the Director's relegation of the reserve to surplus, so as to incorporate it into the taxable net worth base, it is entirely logical to deduce from the statutory language that the Legislature preferred to make the matter depend on the objective criterion of the consistency of such action with sound accounting principles rather than to inject it into the area of technical litigation over contingency. Presumably there might be little or no element of contingency in such a reserve in the case of some taxpayers. Exploration of all the relevant facts (which did not take place at the hearing in the present matter) might frequently require hearings of a length and complexity which it may well be inferred the Legislature *13 intended to avoid when it devised what it considered to be a "relatively simple and administratively feasible formula for measuring the value of the exercise of the corporate privilege in this State." See Macy, supra (77 N.J. Super., at p. 167). Moreover, in the light of the statute, once it were determined that placing the instant reserve in surplus would offend the relevant settled sound accounting principle it would be quite inappropriate for the court to entertain any debate as to the merits (in an accounting sense) of the particular accounting principle implicated.
We deem applicable here, as did the Supreme Court in relation to interpretation of the same tax statute in another regard, the principle that "In the interpretation of statutes levying taxes it is the established rule not to extend their provisions, by implication, beyond the clear import of the language used, or to enlarge their operations so as to embrace matters not specifically pointed out. In case of doubt they are construed most strongly against the government, and in favor of the citizen." Kingsley v. Hawthorne Fabrics, Inc., 41 N.J. 521, 528-529 (1964), quoting Gould v. Gould, 245 U.S. 151, 153, 38 S.Ct. 53, 62 L.Ed. 211 (1917); see also National Tube Co. v. Peck, 159 Ohio St. 98, 111 N.E.2d 11 (Sup. Ct. 1953).
There is some judicial authority bearing upon the problem here under consideration, but none that is cogent in the light of the nature and the specific text of the statute before us. Perhaps the closest case is McLouth Steel Corporation v. State, 372 Mich. 76, 124 N.W.2d 900 (Sup. Ct. 1963). There an equally divided court affirmed a trial court determination, in a corporate franchise tax case, that a reserve for deferred income taxes (created under the same circumstances as here) was not includible within the statutory definition of surplus. The holding was the same for the ensuing two tax years wherein the same result was accomplished on the taxpayer's books by treating the questioned item as a deduction from assets in the nature of a valuation reserve. But the Michigan tax statute was devoid of the New Jersey criterion *14 of "sound accounting principles," and, in disapproving the trial determination, an opinion for four of the Justices significantly stated:
"We are not concerned here with whether or not what was done was a sound accounting practice or good business. Even if this was good accounting or good business, it did not turn this `reserve' into an `outstanding indebtedness' and thereby remove this item from the statutory definition of `surplus.' The record indicates this item belongs to McLouth steel corporation, and is an asset unencumbered by any present lien or obligation. If the corporation were to be dissolved today, clearly this item would be `surplus' as defined by the privilege fee statute." (124 N.W.2d, at p. 906; emphasis added)
In sustaining the result, although not the reasoning of the trial court, three of the Justices said:
"Plaintiff's response to the above is that it is not merely a matter of contingency or of what may happen in the future; that consideration must be given to what already has happened; that under the accelerated method there has been a depletion of the facilities' value as an income tax deduction factor, in excess of that which would have occurred had the straight-line system been employed, leaving the facilities correspondingly of less value; that that decrease in value as an income tax reducer must be reflected in the picture of assets, including surplus, upon which the privilege tax is to be determined. Accordingly, plaintiff contends that, inasmuch as the Federal corporation income tax rate is 52%, an amount equal to 52% of the difference between straight-line and accelerated depreciation for a given year, which is, of course, the amount of the income tax savings realized during that year under the accelerated method, must be deducted from the value of the facilities in question, in order to determine the amount of plaintiff's surplus to be assessed for the privilege fee. This presents a question of fact as to the value of facilities included in the surplus item. Expert testimony of certified public accountants, who testified in the case, supports and confirms plaintiff's position in this respect, not only as to its conformance with sound accountancy practice but also as being correct as a matter of fact. We think it is sound and correct. For that reason it should be held that the items in question are properly deducted from the value of the facilities in question, are not a part of surplus, not subject to imposition of the privilege fee, and that, therefore, the court of claims' judgments for plaintiff should be affirmed." (Id., at pp. 908-909)[5]
*15 It may be observed that the foregoing reasoning accords with alternate theoretical accounting justification for excluding such an item from surplus or stockholders' equity advanced by the experts for the taxpayer in the instant case.
A majority of the same court held that in assessing the franchise tax against a public utility the deferred tax reserve could not be included in surplus for the reason that the corporation's bookkeeping was controlled by the state utilities commission which forbade it. Detroit Edison Company v. State, 367 Mich. 104, 116 N.W.2d 194 (Sup. Ct. 1962). The dissenters relied on the argument that the item was not currently owing to the Internal Revenue Service; and see Detroit Edison Company v. Michigan Corp. & Sec. Com'n, 361 Mich. 150, 105 N.W.2d 110 (Sup. Ct. 1960).
A Texas court, also dealing with a franchise tax statute which did not in its definition of the tax base mention sound principles of accounting, held that accounts for accumulated deferred federal income taxes arising out of accelerated amortization and depreciation taken simultaneously with straight-line depreciation on the general books of account were not includible in surplus. Calvert v. Houston Lighting & Power Company, 369 S.W.2d 502 (Tex. Civ. App. 1963). All the expert testimony in the case supported the taxpayer's position; the statutory tax base was "stated capital, surplus and undivided profits." It was held that the fact that the deferral of taxes constituted, in effect, an "interest free loan" from the federal government could not convert the account to surplus. Compare the contrary result on statutory language much more adverse to the taxpayer in Trunkline Gas Company v. Mississippi State Tax Com'n, 238 Miss. 591, 119 So.2d 378 (Sup. Ct. 1960).
A number of court decisions have had to do with the accounting treatment of the same type of reserves for tax deferrals of public utilities in relation to fixing a rate base or the calculation of earnings of such a public utility for rate-fixing purposes. These cases furnish no guidance in respect of a franchise tax problem such as here presented, since altogether *16 different policy factors are involved in rate-making; moreover, the specific tie to "sound accounting principles" in the instant tax statute is not necessarily implicated in such decisions. See, e.g., In re Hackensack Water Co., 57 N.J. Super. 180, 194-5 (App. Div. 1959) (permitting the treatment of the "deferred taxes" as a current expense for purposes of determining sufficiency of utility earnings), affirmed on this point, modified on other grounds, 35 N.J. 239 (1961); Panhandle Eastern Pipe Line Co. v. Federal Power Com'n, 115 U.S. App. D.C. 8, 316 F.2d 659 (D.C. Cir. 1963), certiorari denied 375 U.S. 881, 84 S.Ct. 147, 11 L.Ed.2d 111 (1963); City of Pittsburgh v. Pennsylvania Public Util. Com'n, 182 Pa. Super. 551, 128 A.2d 372 (Super. Ct. 1956); Cincinnati Gas & Electric Co. v. Public Utilities Com'n, 173 Ohio St. 473, 184 N.E.2d 84 (Sup. Ct. 1962); City of Alton v. Commerce Commission, 19 Ill.2d 76, 165 N.E.2d 513 (Sup. Ct. 1960): City of Alton v. Alton Water Company, 25 Ill.2d 112, 182 N.E.2d 665 (Sup. Ct. 1962); Central Maine Power Co. v. Public Utilities Com'n., 153 Me. 228, 136 A.2d 726 (Sup. Jud. Ct. 1957).
It is our considered judgment that in the case before us the Division of Tax Appeals erred in approving the action of the Director in transferring the income tax deferral reserve under discussion to net worth since so doing was not in accordance with sound accounting principles within the intended meaning of the franchise tax statute.
Judgment reversed.
NOTES
[1] This release announced that "* * * any financial statement filed with this Commission which designates as earned surplus (or its equivalent) or in any manner as a part of equity capital (even though accompanied by words of limitation such as `restricted' or `appropriated') the accumulated credit arising from accounting for reductions in income taxes resulting from deducting costs for income tax purposes at a more rapid rate than for financial statement purposes will be presumed by the Commission to be misleading or inaccurate despite disclosure contained in the certificate of the accountant or in footnotes to the statements, provided the amounts involved are material."
[2] The Bulletin is headed: "Declining Balance Depreciation," the most common form of accelerated depreciation recognized for income taxes under the Internal Revenue Code of 1954.
The original Accounting Research Bulletin No. 44, issued October 1954, made accounting recognition for deferred income taxes (in such situations as the present) permissive rather than mandatory. It stated that the item "need not be recognized in the accounts unless it is reasonably certain that the reduction in taxes during the earlier years * * * is merely a deferment of income taxes until a relatively few years later, and then only if the amounts are clearly material."
However, the prevailing view in the American Institute of Accountants even prior to issuance of Revised Bulletin No. 44 in 1958 seems to have favored the setting up of the reserve for deferred taxes. See the Special Report of the Institute's Committee on Relations with the Interstate Commerce Commission of March 1957, partly printed in Amory and Hardee, Materials on Accounting, supra, at pp. 262-9.
[3] Meaning "reasonable opinion," see Macy, 77 N.J. Super., at p. 178.
[4] "The users of general-purpose financial statements, realizing that such statements have been prepared from records kept in accordance with generally accepted principles, may place greater reliance upon such statements than would otherwise be possible." Id., at p. 6.
[5] The eighth Justice in McLouth affirmed on the ground taken by the trial judge, i.e., that in the absence of fraud or mistake the taxpayer's books were conclusive on the State. (Id., at pp. 909-11) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/74348/ | PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
_____________ ELEVENTH CIRCUIT
02/29/2000
THOMAS K. KAHN
No. 98-2106 CLERK
_____________
D.C. Docket No. 97-00177-CR-T-24E
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELLIOTT R. BROWNLEE,
Defendant-Appellant.
_____________
Appeal from the United States District Court
for the Middle District of Florida
_____________
(February 29, 2000)
Before EDMONDSON and MARCUS, Circuit Judges, and STROM*, Senior
District Judge.
STROM, Senior District Judge:
* Honorable Lyle E. Strom, Senior U.S. District Judge for the District of Nebraska, sitting
by designation.
Appellant Elliott Brownlee appeals the district court’s denial of U.S.S.G. §
5C1.2 safety-valve relief. The application of the federal sentencing guidelines to
uncontroverted facts is a legal issue to be reviewed de novo. United States v. Clavijo,
165 F.3d 1341, 1343 (11th Cir. 1999).
I. BACKGROUND
Appellant, Elliott Brownlee, entered a plea of guilty on August 14, 1997, to six
counts involving conspiracy to possess with intent to distribute cocaine base and
cocaine under 21 U.S.C. § 846, possession of those substances with intent to distribute
under 21 U.S.C. § 841(a)(1), and distribution of those substances under 21 U.S.C. §
841(a)(1). Upon his arrest in January 1997, Brownlee gave a proffer regarding his
drug activity to a Drug Enforcement Administration task force agent. In this proffer,
Brownlee admitted to his involvement in the sale of cocaine, but he did not truthfully
disclose the source of the cocaine at this time, nor on later occasions.
On January 8, 1998, the day before Brownlee’s sentencing hearing, Brownlee’s
trial counsel contacted the prosecutor, telling him that Brownlee would meet with him
before the sentencing hearing to disclose information. On the morning of Brownlee’s
sentencing hearing, Brownlee met with the prosecutor and case agent and disclosed
that co-defendant Alfred Wright, Jr. was the source of the cocaine. The district court
then conducted the sentencing hearing for co-defendant Alfred Wright, Jr., at which
2
the government called Brownlee as a witness. On the witness stand, Brownlee
testified that Alfred Wright was the source of the cocaine. After the district court
sentenced Wright, it conducted Brownlee’s sentencing hearing. Finding that
Brownlee’s base offense level was 32, the district court added a two-level
enhancement pursuant to U.S.S.G. § 3C1.1 for obstruction of justice, and reduced that
level by three offense levels for acceptance of responsibility pursuant to U.S.S.G. §
3E1.1, resulting in a total offense level of 31. The district court sentenced Brownlee
to 120 months imprisonment, the mandatory minimum for his offenses. Had the
district court applied safety-valve relief for Brownlee, he would have been entitled to
a two-level reduction pursuant to U.S.S.G. § 2D1.1(b)(6), resulting in an offense level
of 29 and a sentencing range of 87-108 months.
II. DISCUSSION
In 1994 Congress enacted a provision allowing district courts to sentence less-
culpable defendants without regard to the mandatory minimum sentences in certain
cases. See U.S.S.G. § 5C1.2. This Guideline has been nicknamed the “safety-valve”
provision. The safety valve provision, which implements 18 U.S.C. § 3553(f),
requires a district court to sentence a defendant in certain drug-possession cases
“without regard to any statutory minimum sentence” if the defendant meets five
criteria. U.S.S.G. § 5C1.2; United States v. Figueroa, ___ F.3d ___ (11th Cir. 2000).
3
If the Court determines that all five criteria are met, “ ‘the court shall impose a
sentence pursuant to [the Guidelines] without regard to any statutory minimum
sentence.’ ” United States v. Real-Hernandez, 90 F.3d 356, 361 (9th Cir. 1996)
(citing U.S.S.G. § 5C1.2). There is no dispute in this case that the first four
criteria of § 5C1.2 are satisfied. The sole issue on appeal is whether Brownlee
satisfied U.S.S.G. § 5C1.2(5), which provides:
Not later than the time of the sentencing hearing, the
defendant has truthfully provided to the Government all
information and evidence the defendant had concerning the
offense or offenses that were part of the same course of
conduct or of a common scheme or plan, but the fact that
the defendant has no relevant or useful other information to
provide or that the Government is already aware of the
information shall not preclude a determination by the court
that the defendant has complied with this requirement.
U.S.S.G. § 5C1.2(5). The government argues that the Court should read § 5C1.2(5)
as requiring a defendant to disclose all information in good faith. The government
further contends that defendant’s previous lies about his knowledge do not constitute
disclosing information in good faith. See United States v. Ramunno, 133 F.3d 476 (7th
Cir. 1998) (stating that § 5C1.2 benefits only those defendants who have made a good
faith attempt to cooperate with the authorities) (citations omitted). We decline to
adopt the government’s view.
4
The plain language of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 provides only
one deadline for compliance, “not later than the time of the sentencing hearing.”
United States v. Schreiber, 191 F.3d 103, 106 (2nd Cir. 1999). It is undisputed that
Brownlee met this deadline. Nothing in the statute suggests that a defendant who
previously lied or withheld information from the government is automatically
disqualified from safety-valve relief. Id. A similar situation to Brownlee’s occurred
in United States v. Tournier, 171 F.3d 645 (8th Cir. 1999). In Tournier, the defendant
gave three interviews prior to sentencing, each time disclosing information that was
untruthful. The defendant later gave a fourth interview prior to sentencing, where she
completely and truthfully disclosed the relevant information. Upon such disclosure,
the district court granted the defendant safety-valve relief. In affirming that decision,
the Eighth Circuit declined to adopt the government’s view that safety-valve relief
should not apply to defendants who wait until the last minute to fully cooperate. The
court held that since the defendant had finally provided truthful and complete
information before the sentencing hearing, although the court admitted that obtaining
truthful information from that defendant had been “grudging and fitful,” like “pulling
teeth,” she was entitled to safety-valve relief. Id. at 647. See also United States v.
Gama-Bastidas, 142 F.3d 1233 (10th Cir. 1998) (holding that defendant’s attempt to
furnish information to the court and the government in the Judge’s chambers prior to
5
the sentencing hearing was not “too late” to be entitled to safety-valve relief).
“Moreover, to the extent that the government’s interest in disclosure could justify
penalizing defendants who lie or withhold information during proffer sessions, a
similar scheme already exists independent of the safety valve.” See Schreiber, 191
F.3d at 108 (citing U.S.S.G. § 3C1.1 (obstruction of justice)). We follow those
circuits who have held that lies and omissions do not, as a matter of law, disqualify
a defendant from safety-valve relief so long as the defendant makes a complete and
truthful proffer not later than the commencement of the sentencing hearing. Id.
This does not mean that the defendant's prior lies are completely irrelevant. In
making this determination, the evidence of his lies becomes "part of the total mix of
evidence for the district court to consider in evaluating the completeness and
truthfulness of the defendant's proffer." Schreiber, 191 F.3d at 108.
The question of whether the information Brownlee supplied to the government
the morning of his sentencing was truthful and complete, however, is a factual finding
for the district court. United States v. Espinosa, 172 F.3d 795, 797 (11th Cir. 1999)
(stating that it is the district court’s responsibility to determine the truthfulness of the
information the defendant provided to the government). Because the district court
disqualified Brownlee from safety-valve relief at the threshold, the district court never
6
considered the factual question of whether his final proffer was complete and truthful.
III. CONCLUSION
We therefore VACATE Brownlee’s sentence and REMAND with instructions
that the district court resentence Brownlee in accordance with this opinion.
7 | 01-03-2023 | 04-26-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/542792/ | 904 F.2d 709
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Carlos Arnaz WILLIAMS, Plaintiff-Appellant,v.Perry M. JOHNSON; Robert Brown, Jr.; Duane L. Waters;Rudy Sthalburg; William F. Grant; James Pogats; WilliamMalone; Gene Borgert; Steven Kowalewicz, Sgt.; DennisAndies; Dennis Hammond; Leo Coucu, Sgt.; Thomas Coucu;James Brown; Judy Parish; Frank Williams; Wayne Sheppard;Floyd Roberts, Lt.; Donald Mellendorf; Luella Burke;Robert Wright, Defendants-Appellees.
No. 89-1816.
United States Court of Appeals, Sixth Circuit.
June 14, 1990.
Before KEITH and NATHANIEL R. JONES, Circuit Judges and ENGEL, Senior Circuit Judge.
ORDER
1
Carlos Arnaz Williams moves for counsel on appeal from the district court's judgment in favor of the defendants in this prisoner's civil rights case. 42 U.S.C. Sec. 1983 (1982). The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
Williams is a prisoner in the Michigan prison system, and the defendants are various prison officials. William's complaint and supplemental complaint challenged the defendants' failure to provide him with his legal materials and with access to the prison law library during a two month period of time after a transfer from one prison to another.
3
A magistrate recommended that judgment be granted for the defendants because Williams was represented by counsel in his direct criminal appeal and because Williams had not shown prejudice to his pending civil litigation. See Bounds v. Smith, 430 U.S. 817, 828 (1977); Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir.1985). After reviewing Williams's objections, the district court adopted the magistrate's report, entering judgment for the defendants.
4
Upon consideration, we conclude that the district court properly granted judgment to the defendants. Accordingly, the motion for counsel is denied, and the judgment of the district court is affirmed for the reasons stated in the magistrate's report of March 20, 1989, and the district court's order of June 13, 1989. Rule 9(b)(5), Rules of the Sixth Circuit. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/102724/ | 299 U.S. 300 (1936)
KROGER GROCERY & BAKING CO.
v.
LUTZ, ATTORNEY GENERAL OF INDIANA, ET AL.
No. 501.
Supreme Court of United States.
Argued December 7, 1936.
Decided December 21, 1936.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF INDIANA.
Mr. Robert S. Marx, with whom Messrs. Frank E. Wood and Harry Kasfir were on the brief, for appellant.
Mr. Philip Lutz, Jr., Attorney General of Indiana, Mr. Joseph W. Hutchinson, Assistant Attorney General, and Mr. Urban C. Stover, First Deputy Attorney General, were on the brief for appellees.
PER CURIAM.
Complainant brought this suit to restrain the enforcement of an order of the Milk Control Board of the State of Indiana, made June 12, 1936, fixing selling prices of milk in the Fort Wayne Marketing Area. Upon the hearing by three judges (28 U.S.C. 380) of a motion for a preliminary injunction, the District Court dismissed the cause for the want of jurisdiction upon the ground that the requisite jurisdictional amount was not involved. The court made the following findings:
"2. That complainant owns and operates a chain of grocery stores in and out of Indiana, forty-four (44) of *301 which are located in the City of Fort Wayne, and within a radius of seven (7) Miles thereof, and has invested in said stores in said Fort Wayne marketing area approximately Four Hundred Fifty Thousand ($450,000.00) Dollars, making an [sic] annual sales of approximately Two Million ($2,000,000.00) Dollars, of which said sales milk and dairy products amount to approximately Forty-five thousand ($45,000.00) Dollars. That the number of quarts of milk sold by said stores in one year period are less than 550,000 in said area, in that complaninant's profits per quart on its milk sold are .00398. That complainant's total loss in profits for a one-year period on a complete loss of its milk business would be Two Thousand Eighty-nine ($2089.00) Dollars, on the basis of 550,000 quarts. That if complainant be required by Official Order No. 14 of the Milk Control Board of Indiana to sell its milk at a level price with other dairies and distributors in said territory, its loss in the sales of milk would not exceed twenty-five percent, and its loss in profits would not exceed Five Hundred ($500.00) Dollars.
"3. That on March 12th, 1935 Chapter 281 of the acts of the General Assembly of the State of Indiana, commonly known as the Milk Control Law, became effective, and that said Act expires by limitation on July 1st, 1937."
In granting a temporary stay pending appeal to this Court, the District Court found that the enforcement of the order would "cause immediate and irreparable injury to the business of the complainant."
In determining whether the requisite jurisdictional amount is in controversy, where it does not appear that the complainant is deprived of its license or is prevented by the regulation from prosecuting its business, the question is not the value or net worth of the business but the value of the right to be free from the regulation, and this may be measured by the loss, if any, that would follow the enforcement of the rule prescribed. McNutt v. General Motors Acceptance Corp., 298 U.S. 178.
*302 In order to support its contention, complainant seeks to capitalize its earnings and thus to arrive at the value of the part of the business affected by the order. But that basis of ascertaining a capital loss is not available to complainant here, as the statute, and with it the order, expire by limitation on July 1, 1937. The hurt by reason of the regulation does not appear to be greater than the loss sustained while the statute is in operation. The decree of the District Court is
Affirmed.
MR. JUSTICE STONE took no part in the consideration or decision of this case. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/75866/ | 295 F.3d 1232
FLUOR DANIEL, Petitioner,v.OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Elaine L. Chao, Secretary of Labor, Respondents.
No. 01-16462.
United States Court of Appeals, Eleventh Circuit.
June 26, 2002.
COPYRIGHT MATERIAL OMITTED David Royce Wylie, D. Randle Moody, II, Haynsworth, Baldwin, Johnson & Greaves, P.A., Greenville, SC, for Petitioner.
Lillian Chaves, Ann Rosenthal, Washington, DC, for Respondents.
Petition for Review of an Order of the Occupational Safety and Health Review Commission.
Before BIRCH, MARCUS and CUDAHY*, Circuit Judges.
MARCUS, Circuit Judge:
1
Petitioner Fluor Daniel, an engineering and construction company, appeals an Occupational Safety and Health Review Commission ("OSHRC" or "the Commission") decision affirming a safety citation and penalty relating to the company's failure to provide emergency respirators at one of its facilities in Burkville, Alabama. Specifically, Fluor Daniel argues that the OSHRC reached an unreasonable conclusion and abused its discretion when it found (1) that Fluor Daniel violated the Occupational Safety and Health Administration ("OSHA") standard governing respiratory protection, and (2) that Fluor Daniel committed this violation willfully. After thorough review, we conclude that the findings of the OSHRC are supported by substantial evidence and do not constitute an abuse of discretion. Accordingly, we affirm.
I.
2
The relevant facts are reasonably straightforward. Fluor Daniel is an engineering and construction company with approximately 30,000 employees worldwide. Between 1985 and 1987, Fluor Daniel was responsible for the construction of a General Electric ("GE") manufacturing facility in Burkville, Alabama. Under a contract with GE, Fluor Daniel has kept employees at the facility since it opened. These employees are responsible for maintenance services and certain additions and modifications to the plant, but they are not directly involved in GE's production.
3
The Burkville facility contains one waste handling plant and five manufacturing plants, including one that produces resin and one that produces phosgene. As described in a GE material safety data sheet, phosgene is a "poisonous gas [that] has an irritant effect on the eyes, skin, respiratory tract and especially the lungs." In addition to irritation, this potentially fatal, non-flammable gas can cause burns, chest pains, breathing difficulties, lung congestion, dizziness, shock, numbness, vomiting, bluish skin color, chills, and headaches. The resin plant at Burkville is contained in a six-story, open-sided structure located approximately fifty feet east of the phosgene plant. Though separated by a street, the two plants are connected by a pipe rack that holds phosgene-conveying pipes.
4
On May 22, 1996, Fluor Daniel employees were performing installation work to add a heat exchanger to a caustic scrubbing system on the second floor mezzanine of the resin plant. While they were performing this job, low levels of phosgene vented through the caustic line into the air of the resin plant. When the phosgene was detected, the resin plant was evacuated. Because neither GE nor Fluor Daniel provided emergency escape respirators to the Fluor Daniel employees performing the installation work, none of the Fluor Daniel workers had such respirators during the evacuation. Once they got out of the building, eleven of these employees received examinations from GE's on-site physician, who referred them to a hospital in Montgomery. The employees received prophylactic treatment at the hospital, and eight stayed for overnight observation.
5
The following day, May 23, 1996, OSHA compliance officers began health inspections of the Burkville facility. As a result of these inspections, the Secretary of Labor ("the Secretary") charged Fluor Daniel with five counts, or "items," of violating OSHA standards by failing to (1) provide adequate respiratory protection to employees during an emergency, (2) create proper alternative emergency action plans, (3) ensure or document that the resin plant employees were trained about the hazards of phosgene, (4) develop safe work practices to control hazards during lockout and tagout procedures, and (5) maintain adequate hot work permits.
6
Of relevance to this appeal, the emergency respirator regulation in place at the time provided that, "[i]n emergencies, or when controls required by Subpart D of this part either fail or are inadequate to prevent harmful exposures to employees, appropriate respiratory protective devices shall be provided by the employer and shall be used." 29 C.F.R. § 1926.103(a)(1) (1996).1 Subpart D, codified at 29 C.F.R. § 1926.55, listed various substances, including phosgene, which should be avoided above certain levels. The regulation also provided that, for "gas and vapor contaminants immediately dangerous to life and health," such as phosgene, the protective devices should include a self-contained breathing apparatus, hose masks with a blower, an air-purifying, full facepiece respirator with a chemical canister, and, for escape only, self-rescue mouthpiece respirators. See 29 C.F.R. § 1926.103, Table E-4 (1996).
7
An Administrative Law Judge ("ALJ") affirmed the item alleging violations of the respiratory protection and emergency action plan standards, but vacated the remaining three items, assessing a total penalty of $32,500. Notably, with regard to the respiratory protection regulation, the ALJ found that Fluor Daniel willfully violated Section 1926.103(a)(1) by voluntarily disregarding the OSHA requirement that respirators be provided during evacuation and instead relying solely on evacuation to protect its employees.
8
Fluor Daniel appealed the ALJ's decision to the OSHRC, which affirmed the respiratory protection item and vacated the remaining items.2 In upholding the respiratory protection count, the OSHRC specifically rejected Fluor Daniel's arguments that it lacked fair notice of the requirements of Section 1926, that the Secretary was estopped from charging a respiratory protection violation, and that there was insufficient evidence to support the finding of a willful violation. After finding that the language of the regulation provided clear notice and that the Secretary was not barred from bringing a respiration protection count merely because it had never brought one against Fluor Daniel before, the Commission explained that the evidence presented to the ALJ showed that Fluor Daniel willfully violated the regulation. Specifically, the Commission held that Fluor Daniel knew about the need to provide respirators during emergencies but instead disregarded the OSHA respirator requirement and decided to rely solely on its policy of evacuating employees in emergency situations. As a result of the willful violation of Section 1926.103(a)(1), the OSHRC assessed Fluor Daniel a penalty of $30,000. The company appealed the Commission's decision to this Court pursuant to 29 U.S.C. § 660.
II.
9
OSHRC decisions are entitled to considerable deference on appellate review. Indeed, the statutory command makes this clear: "[t]he findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive." 29 U.S.C. § 660(a). We have held that "[s]ubstantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." J.A.M. Builders, Inc. v. Herman, 233 F.3d 1350, 1352 (11th Cir.2000) (quoting Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.1997)). Moreover, the legal determinations of an agency like the OSHRC are to be overturned only if they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with [the] law." 5 U.S.C. § 706(2)(A); see also Reich v. Trinity Indus., 16 F.3d 1149, 1152 (11th Cir.1994) ("This court reviews the Commission's order to determine whether it is in accordance with the law."). We add that in interpreting OSHA regulations, a reviewing court should defer to the reasonable interpretations of the Secretary of Labor. See Martin v. OSHRC, 499 U.S. 144, 158, 111 S.Ct. 1171, 1179-80, 113 L.Ed.2d 117 (1991). Finally, an OSHRC finding of willfulness is a finding of fact, see J.A.M. Builders, 233 F.3d at 1352, but the Commission's definition or application of the term is a matter of law. See Reich, 16 F.3d at 1152.
10
On appeal, Fluor Daniel makes two closely-related arguments. First, the company contends the Commission erred in determining that it had fair notice that its respiratory protection program could be found to violate Section 1926.103(a)(1). Second, Fluor Daniel argues that, even if there was a violation, the OSHRC acted unreasonably in concluding that the violation was willful. In light of the highly deferential standard for reviewing OSHRC decisions, and based on our review of the entire record, Fluor Daniel's arguments cannot succeed.
A.
11
Fluor Daniel argues that it lacked notice Section 1926.103(a)(1) required it to provide emergency respirators because the language of the regulation was vague and because past inspections of the plant by government officials lulled the company into believing that its respiratory protection program was adequate. We are not persuaded.
12
As an initial matter, Fluor Daniel offers no reason for this Court to conclude that the OSHRC acted contrary to the law when it held that Section 1926.103(a)(1) was not vague. The regulation states, in clear terms, that "[i]n emergencies, or when controls required by Subpart D of this part either fail or are inadequate to prevent harmful exposures to employees, appropriate respiratory protective devices shall be provided by the employer and shall be used." 29 C.F.R. § 1926.103(a)(1). As the Commission held, this standard "provide[d] clear notice that the respiratory protection standard applied to Fluor Daniel's facility" and "plainly required the availability and use of respirators in emergencies or when engineering controls failed." The conduct for which Fluor Daniel was sanctioned was a precise violation of this unambiguous regulation. Although Fluor Daniel stresses that the incident in the resin plant did not involve a failure of engineering controls, the company acknowledges, as it must, that the incident was in fact an emergency and that it did not provide respirators to its employees. Fluor Daniel also does not deny that phosgene is a hazardous gas under Subpart D of the regulation, codified at 29 C.F.R. § 1926.55. Quite simply, we agree with the OSHRC that there was nothing vague or ambiguous about the regulation as applied to Fluor Daniel in this situation.
13
Because the regulation itself was not vague, Fluor Daniel can prevail only if it succeeds on the claim that the past inspections somehow led the company to believe that it could not be found in violation of the respiratory protection regulation. This argument fails, however, because we cannot disturb the OSHRC's findings of fact unless they are unsupported by substantial evidence. See J.A.M. Builders, 233 F.3d at 1352. And, in this case, substantial evidence supports the Commission's determination that the prior inspections of the Burkville facility did not address the issue of emergency respirators in the resin plant.
14
The three past inspections on which Fluor Daniel relies are a 1991 OSHA compliance inspection and two subsequent reviews conducted between 1991 and 1996 pursuant to GE's participation in OSHA's Voluntary Protection Program ("VPP").3 The evidence strongly supports the Commission's determination that nothing in any of these inspections conveyed to Fluor Daniel the government's approval of the lack of emergency respirators in the resin plant. First, the 1991 visit addressed only complaints about the lack of adequate emergency respirators in the facility's chlorine plant, where mouthpiece respirators were provided to Fluor Daniel employees, not in the resin plant. Dennis Bowden, Fluor Daniel's Construction and Site Manager at Burkville from 1985 to 1995, testified before the ALJ he could not recall any discussion of the resin plant with the investigators conducting the 1991 inspection. The only contrary testimony came from David Herrington of Fluor Daniel's corporate safety group. Although Herrington expressed an understanding that the 1991 inspection covered the resin plant, the value of his understanding was limited since he had no first-hand knowledge; indeed, he was not working at Burkville at the time. Moreover, even Herrington never said that emergency respirators were discussed as part of any inspection of the resin plant in 1991.
15
The OSHA inspector's notes did indicate that respirators were available and used as needed in 1991, but we see no reason to disagree with the Commission's factual determination that these notes referred only to the chlorine plant, which was the subject of the complaint that led to the 1991 investigation in the first place. The same report that noted the use of respirators expressly stated that the 1991 investigation was limited in scope. As the inspector explained in his report, "a complete inspection of all chemical units was not conducted.... [R]eview of the brine operation4 and BPA [bisphenol A] facility was adequate at this time.... Since the chlorine leak occurred in the brine operation, the main portion of the investigation concentrated around this operation." For the same reason, we cannot fault the Commission for failing to place any stock in Bowden's general recollection that the OSHA compliance officer reviewed Fluor Daniel's entire respiratory protection program and found no deficiencies. Simply put, there is substantial evidence to support the Commission's decision that the 1991 inspection did not address emergency respirators in the resin plant, and Fluor Daniel's suggestions to the contrary do not compel us to conclude that the Commission's findings were in error.
16
Similarly, we cannot disturb the Commission's finding that the subsequent VPP inspections did not address Fluor's respiratory equipment. Absolutely nothing in the record shows that resin plant emergency respirators were discussed at either visit, and Fluor Daniel itself points only to Bowden's broad testimony that he told the inspectors that Fluor Daniel had a respiratory protection program in place. As with the 1991 inspection, Fluor Daniel identifies no evidence indicating that OSHA inspectors said or did anything at any time that would have induced the company to believe that it did not need to provide emergency respirators to the resin plant employees. Without such evidence, we cannot disturb the Commission's determination that Fluor Daniel was not misled by past inspections. Therefore, the company cannot prevail on its claim that it lacked notice of the requirements of Section 1926.103(a)(1).
17
Moreover, even if Fluor Daniel could show that OSHA inspectors considered and failed to issue a citation for the lack of respirators in the resin plant during the 1991 inspection or the VPP visits, the company would still not be able to prevail in the absence of any affirmative approval of the lack of respirators. Fluor Daniel makes no claim that any OSHA officials expressly said that respirators were unnecessary, and mere silence by OSHA inspectors is not enough to support a company's claim that it was lulled into violating a regulation. As the Commission recognized, it is well established by both the Commission and the courts that OSHA's failure to cite an employer during a past inspection does not, standing alone, constitute a lack of fair notice. See, e.g., Donovan v. Daniel Marr & Son Co., 763 F.2d 477, 484 (1st Cir.1985) ("An employer cannot ... rely on the Secretary's failure to issue citations."); Cedar Constr. Co. v. OSHRC, 587 F.2d 1303, 1306 (D.C.Cir. 1978) (explaining that allowing companies to rely on lack of citations in prior investigations would "discourage self-enforcement of the Act by businessmen who have far greater knowledge about conditions at the workplaces than do OSHA inspectors."); Sec'y of Labor v. Peterson Bros. Steel Erection Co., 16 O.S.H. Cas. (BNA) 1196, 1201 (OSHRC 1993) ("[I]t is well established that an employer cannot rely on the Secretary's failure to issue a citation.").
18
The one case that Fluor Daniel cites in support of its position that the absence of citations in prior inspections constitutes a lack of fair notice for future violations is inapposite. In Trinity Marine Nashville, Inc. v. OSHRC, 275 F.3d 423 (5th Cir. 2001), OSHA inspectors cited a company for violating a regulation by using wood-framed electrical plug-in boxes in a shipyard. OSHA withdrew the citation, but then cited the company again for the same violation eight years later. Because OSHA officials "at least implicitly approved the use of the boxes" by filing, considering, and then withdrawing the earlier citation, id. at 431, the Fifth Circuit determined that the company had a valid claim that it lacked fair notice that it could be cited for an identical violation years later. In this case, unlike in Trinity Marine, there is no evidence that OSHA inspectors ever addressed, let alone approved, the unavailability of respirators in the resin plant. All that exists here, if anything, is past silence by OSHA officials, which cannot be construed as a sign of approval.5
19
In short, there is no basis for us to conclude that the Commission erred in finding that Fluor Daniel had proper notice that it could be held in violation of Section 1926.103(a)(1). The language of the governing regulation was clear, and nothing in either the 1991 inspection or the VPP visits misled Fluor into believing that it was in compliance.
B.
20
Fluor Daniel also argues that, even if we uphold the finding of a violation, this Court should vacate the portion of the Commission's decision finding that the violation was willful. Section 666 of Title 29 of the United States Code provides, in relevant part, that an employer who "willfully or repeatedly violates" any OSHA standard, rule, or order, may be assessed a penalty of no more than $70,000 but no less than $5,000 for each willful violation. 29 U.S.C. § 666(a). The statute provides lesser penalties for "serious violations," which occur if an employer knew about and failed to prevent "a substantial probability that death or serious physical harm could result from a condition which exists" in the workplace. 29 U.S.C. § 666(k). The statute provides even lesser penalties for violations deemed not serious. See 29 U.S.C. § 666(c). A court of appeals has the power to reverse a finding of willfulness by the OSHRC and re-classify a violation as either "serious" or "not serious." See, e.g., Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160 (3d Cir.1980). Fluor Daniel asks us to do so in this case.
21
Although Section 666 does not define the terms "willful" or "willfully," we have held that "[t]he definition of `willful' in this circuit is, in its simplest form, `an intentional disregard of, or plain indifference to, OSHA requirements.'" Reich, 16 F.3d at 1152 (quoting Ga. Elec. Co. v. Marshall, 595 F.2d 309, 317 (5th Cir. 1979)). In order for a violation to be deemed "willful,"
22
proof must be adduced either that (1) "[the] employer knew of an applicable standard or provision prohibiting the conduct or condition and consciously disregarded the standard," or (2) that, if the employer did not know of an applicable standard or provision's requirements, it exhibited such "reckless disregard for employee safety or the requirements of the law generally that one can infer that ... the employer would not have cared that the conduct or conditions violated [the standard]."
23
J.A.M. Builders, 233 F.3d at 1355 (quoting Sec'y of Labor v. Williams Enters., Inc., 13 O.S.H. Cas. (BNA) 1249, 1257 (OSHRC 1987)).
24
When the Secretary alleges that a violation was willful, a company cannot defend itself by claiming that it acted in good faith. As we explained in Reich, the intentional disregard or plain indifference test "makes irrelevant the employer's good faith disregard of the regulations, or the employer's belief that its alternative program meets the objectives of OSHA's regulations." 16 F.3d at 1153. Allowing a willful violation to be imposed only in cases of bad faith would "unduly restrict OSHA's authority to impose its most severe sanction," and thus undermine "the congressional purpose of creating a strong and effective federal job safety statute." Id. at 1154 (quoting Ga. Elec. Co., 595 F.2d at 319). Quite simply, "[a]n employer's good faith belief that its alternative program is superior to OSHA's requirements is irrelevant to the question whether [a company] `wilfully' violated [OSHA regulations]." Id. This is because "[a]n employer must follow the law even if it has a good faith belief that its own policy is wiser." Id. (quoting RSR Corp. v. Brock, 764 F.2d 355, 363 (5th Cir.1985)).
25
Despite the clear holding in Reich that good faith is not a defense to a willful violation, Fluor Daniel argues that the OSHRC erred by ignoring the company's belief that its program was in compliance with the regulation. The company attempts to distinguish Reich by saying that it truly thought it was following the OSHA rules, unlike the company in that case, which implemented a noise control program that it considered superior to the OSHA program even though it did not fully comply with the regulation. This effort to distinguish our precedent fails, however, because the Commission found that Fluor Daniel officials knew that the company's failure to provide emergency respirators in the resin plant violated Section 1926.103(a)(1). As with the determination that Fluor Daniel committed a violation, we are bound by the Commission's determination as long as it is supported by substantial evidence. See J.A.M. Builders, 233 F.3d at 1352.
26
The OSHRC's determination that Fluor Daniel acted willfully is supported by substantial evidence. The single most important piece of evidence is Fluor Daniel corporate safety group member Herrington's own testimony that, as early as 1989, he expressed concern about the lack of respirators for Fluor Daniel employees. Knowing that GE provided emergency respirators for GE employees but not for Fluor Daniel employees, Herrington requested that Fluor Daniel change its policy and provide these items. Nevertheless, the company made a deliberate decision not to do so because, according to Herrington, "in the event of an emergency, Fluor Daniel personnel were to immediately evacuate the area[, a]nd therefore, it was not justified or warranted to provide those rescuers for contractor personnel."
27
As the Commission found, Fluor Daniel made this decision despite clearly knowing about the need for respirators, as evidenced by Herrington's own comments, the unambiguous language of the OSHA regulation, the undisputed recognition of phosgene's dangers, and the fact that there had been a prior emergency at the Burkville facility involving the release of chlorine in 1991. In light of all of this evidence, we cannot conclude that the Commission erred in holding that "Fluor Daniel's deliberate decision not to take basic measures to help employees protect themselves shows plain indifference to employee safety and supports a finding that the violation was willful." While Fluor Daniel may be correct in asserting that other interpretations of the evidence are conceivable, there is sufficient evidence to support the interpretation accepted by the Commission.
28
Fluor Daniel offers no reason for us to hold that the OSHRC erred in finding deliberate disregard and plain indifference as a matter of fact or law. In fact, the evidence reveals that this case is similar to Reich, where the company was found to have acted willfully when it substituted its own judgment for that of the regulation. Here, Herrington's testimony reveals that Fluor Daniel officials intentionally opted to ignore OSHA's respiratory protection mandate merely because they believed that evacuating employees was a more efficacious way of protecting workers from a phosgene leak. This substitution of their judgment for OSHA's is plainly barred by our precedent. See Reich, 16 F.3d at 1154. In the end, because we can discern no errors in the Commission's factual findings or legal conclusions, we have no reason to disturb the Commission's holding that the company's violation of Section 1926.103(a)(1) was willful.6
29
Accordingly, we AFFIRM the OSHRC's determination that Fluor Daniel willfully violated 29 C.F.R. § 1926.103(a)(1).
30
AFFIRMED.
Notes:
*
Honorable Richard D. Cudahy, U.S. Circuit Judge for the Seventh Circuit, sitting by designation
1
Section 1926.103(a)(1) was revised in 1998, after this case arose, to make its requirements identical to general industry standards set forth at 29 C.F.R. § 1910.134. The new regulation is not relevant to this case
2
The OSHRC dismissed the employee training, lockout/tagout, and hot work permit counts on the ground that the Secretary was unable to make a prima facie showing that operations at the plant involved 10,000 pounds or more of a flammable liquid or gas, which is required for the governing regulations to apply. The Commission dismissed the emergency action plan claim because, at that time of the May 1996 incident, no particular OSHA regulation required such a plan
3
The VPP is a cooperative program that allows qualified companies with rigorous safety practices and strong safety records to avoid regularly programmed OSHA inspections. Even when a company participates in the VPP, OSHA continues to monitor its safety and health practices and, when necessary, to enforce federal standardsSee Voluntary Protection Programs to Supplement Enforcement and to Provide Safe and Healthful Working Conditions; Changes, 53 Fed.Reg. 26,339 (July 12, 1988). The Burkville plant was part of the VPP as a result of GE's participation in the program.
4
The terms "brine operation" and "chlorine plant" are used interchangeably. In a brine operation, chlorine is produced by passing an electric current through a solution of brine, or salt dissolved in water
5
Another case cited by Fluor Daniel,Martin v. Miami Indus., 983 F.2d 1067 (6th Cir.1992) (unpublished table decision), is of no avail. In that case, the Sixth Circuit held that a company did not have proper notice of a violation because the regulation at issue was vague and because OSHA had failed to cite the violation in past inspections. The primary focus of the opinion was the vagueness of the rule, not the past inspections. In the case before this panel, the regulation at issue is not at all vague, as discussed above. Therefore, Fluor Daniel, unlike Miami Industries, was plainly placed on notice of its obligations under the regulation.
6
As a final note, Fluor Daniel offers no legal support for its contention that the willfulness sanction was arbitrary in light of the fact that OSHA downgraded GE's citation for the same violation from willful to serious. Fluor Daniel points to nothing in this record indicating that GE officials gave the same level of consideration to the question of whether to provide emergency respirators in the resin plant and made the same calculated decision to rely on evacuation as an alternative. The mere fact that an OSHA inspector initially classified GE's violation as willful does not establish, as a matter of fact, that GE officials consciously disregarded the OSHA standard or employee safetySee J.A.M. Builders, 233 F.3d at 1355. For Fluor Daniel, there was powerful evidence on the record indicating that the violation was in fact willful. The key evidence cited by the OSHRC in this regard was the testimony of Herrington, a safety official for Fluor Daniel, not for GE. In the absence of any evidence, let alone equally powerful evidence relating to GE, we cannot say that GE's violation involved the same intentional disregard or plain indifference exhibited by Fluor Daniel. We simply have no factual basis to find that the Commission acted arbitrarily by downgrading GE's violation but not Fluor Daniel's. | 01-03-2023 | 04-26-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/76597/ | 368 F.3d 1359
UNITED STATES of America, Plaintiff-Appellee,v.Patrice Daliberti HURN, Defendant-Appellant.
No. 03-13366.
United States Court of Appeals, Eleventh Circuit.
May 7, 2004.
William Mallory Kent, The Law Office of William Mallory Kent, Jacksonville, FL, for Defendant-Appellant.
Susan H. Raab, Jacksonville, FL, Tamra Phipps and Susan Hollis Rothstein-Youakim, Tampa, FL, for Plaintiff-Appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before TJOFLAT, RONEY and FAY, Circuit Judges.
TJOFLAT, Circuit Judge:
I.
1
The defendant, Patrice Hurn, was an employee of the United States Postal Service who painted as a hobby. She had a website advertising her painting services. On December 4, 2000, she submitted a claim for disability due to carpal tunnel syndrome that she alleged was caused by her job. Although her claim was initially accepted, in May, 2001, postal inspectors opened an investigation to examine the possibility that she had committed workers' compensation fraud. In August, the Postal Service offered her a new job to accommodate her disability, but she sent them a letter stating that she did not have the physical capacity to perform the duties of that job, and that it was too far away for her to drive to.
2
As part of the ongoing investigation of Hurn, two undercover postal inspectors separately hired her at different times to paint pictures of their pets. They paid her a total of approximately $500; she gave one of the agents a professionally printed receipt. Shortly after each transaction, the postal service sent her a "1032 Form" in connection with her workers' compensation benefits, which required her to report any outside income she had received. Both times, she failed to report her income from her paintings on the forms.
3
On September 18, 2002, a federal grand jury indicted Hurn for three counts of violating 18 U.S.C. § 1920, which prohibits making false statements in connection with federal worker's compensation programs. Count I was based on her letter to the postal service claiming she was unable to perform the duties of the new job which she had been offered. Counts II and III were for the two 1032 Forms on which she neglected to report her income from painting. Hurn pled not guilty. She was tried before a jury, convicted on all counts, and sentenced to five months' imprisonment.
4
Part II of this opinion considers Hurn's challenge to the adequacy of the district court's jury instructions. Part III turns to her claim that the district court violated her right to a fair trial by excluding a critical defense witness. Finally, Part IV considers the sufficiency of the evidence to support her convictions under Counts II and III.
II.
5
Hurn first contends that the district court erred in failing to instruct the jury to determine whether her false statements actually led to her receiving over $1,000 in workers' compensation benefits. 18 U.S.C. § 1920 provides, "Whoever knowingly and willfully ... makes a false, fictitious, or fraudulent statement or representation ... in connection with the application for or receipt of compensation or other benefit or payment [under a federal program] shall be guilty of perjury." The statute goes on to state,
6
[O]n conviction thereof [the defendant] shall be punished by a fine under this title, or by imprisonment for not more than 5 years, or both; but if the amount of the benefits falsely obtained does not exceed $1,000, such person shall be punished by a fine under this title, or by imprisonment for not more than 1 year, or both.
7
Id.
8
The maximum sentence to which a § 1920 defendant is subject depends on the amount of benefits she "falsely obtained." In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000), the Supreme 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." Under Apprendi, for a defendant to be subject to a 5-year rather than a 1-year maximum sentence under § 1920, the jury must determine that the amount of benefits she "falsely obtained" exceeds $1,000. In the instant case, the court instructed the jury that it could not convict unless "the amount of benefits falsely obtained [by Hurn] exceeded $1,000." This instruction satisfies Apprendi's due process requirements.
9
Hurn maintains that this instruction was insufficient, however, because it did not require the jury to find that a causal link existed between her false statement and her receipt of more than $1,000 in workers' compensation benefits. She argues that the district court should have asked the jury whether, "because of the false statement or report, [Hurn] obtained more than $1,000 in federal worker's compensation funds." We agree with Hurn that the plain meaning of the statute requires that the jury find such a causal link for a defendant to be subject to the statute's enhanced penalty regime. We believe that the instructions given, however, satisfy this requirement. The court asked the jury whether the amount of benefits "falsely obtained" exceeded $1,000. A reasonable juror would be likely to conclude that a benefit is obtained "falsely" if it is obtained as a result of a fraudulent or misleading statement or omission. Therefore, the instruction as given fairly includes the causation requirement to which the defendant points. Moreover, because the instruction was essentially lifted from the text of the statute, it would be almost impossible for us to conclude that it did not convey the statute's requirements. Consequently, we reject Hurn's challenge to the jury instructions.
III.
10
Hurn's next claim is that the district court's exclusion of Attorney Paul Felser as a defense witness violated her constitutional right to a fair trial. Hurn sought to have Felser testify that, under the "concurrent dissimilar employment" doctrine, her benefits would not have been reduced if she had truthfully reported her income from painting on the 1032 Forms. Hurn claims that, because her benefits would have remained the same whether she lied or told the truth about her painting income, she had no reason to deliberately or willfully defraud the government. Had the jury heard this doctrine, it would likely have concluded that the omission of this information from the form was the result of either an oversight or misunderstanding of the forms.
11
The Sixth Amendment to the United States Constitution guarantees defendants the right to have "compulsory process for obtaining witnesses in his favor." U.S. Const. amend. VI. Implicit in this right — as well as in the basic notion of "due process of law" in general, see U.S. Const. amendV — is the idea that criminal defendants must be afforded the opportunity to present evidence in their favor. See Specht v. Patterson, 386 U.S. 605, 610, 87 S.Ct. 1209, 1212, 18 L.Ed.2d 326 (1967) ("Due process ... requires that [the defendant] ... have an opportunity to be heard ... and to offer evidence of his own."); United States v. Ramos, 933 F.2d 968, 974 (11th Cir.1991) ("A criminal defendant's right to present witnesses in his own defense during a criminal trial lies at the core of the fifth and fourteenth amendment guarantees of due process.").
12
In assessing a defendant's claims under the Fifth and Sixth Amendments to call witnesses in her defense, we engage in a two-step analysis. We first examine whether this right was actually violated, then turn to whether this error was "harmless beyond a reasonable doubt" under Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Because we conclude that the district court did not violate Hurn's constitutional right to call witnesses on her behalf, we need not reach the second step of this analysis.
13
A district court's exclusion of a defendant's evidence violates these Compulsory Process and Due Process guarantees in four circumstances.1 First, a defendant must generally be permitted to introduce evidence directly pertaining to any of the actual elements of the charged offense or an affirmative defense.2 Second, a defendant must generally be permitted to introduce evidence pertaining to collateral matters that, through a reasonable chain of inferences, could make the existence of one or more of the elements of the charged offense or an affirmative defense more or less certain. Third, a defendant generally has the right to introduce evidence that is not itself tied to any of the elements of a crime or affirmative defense, but that could have a substantial impact on the credibility of an important government witness. Finally, a defendant must generally be permitted to introduce evidence that, while not directly or indirectly relevant to any of the elements of the charged events, nevertheless tends to place the story presented by the prosecution in a significantly different light, such that a reasonable jury might receive it differently. We review each of these standards in turn.3
A.
14
The most obvious component of a defendant's Fifth and Sixth Amendment right to present evidence in his favor is to present evidence that has a direct bearing on a formal element of the charged offense. "A defendant's right to a fair trial is violated when the evidence excluded is material in the sense of a crucial, critical, highly significant factor." United States v. Ramos, 933 F.2d 968, 974 (11th Cir.1991); see also Washington v. Texas, 388 U.S. 14, 23, 87 S.Ct. 1920, 1925, 18 L.Ed.2d 1019 (1967) ("[T]he petitioner in this case was denied his right to have compulsory process for obtaining witnesses in his favor because the State arbitrarily denied him the right to put on the stand a witness... whose testimony would have been relevant and material to the defense."). This reasoning applies with equal force to directly proving the existence of an element of an affirmative defense. See Boykins v. Wainwright, 737 F.2d 1539, 1545 (11th Cir.1984) (holding that expert testimony directly relevant to establishing an insanity defense "clearly meets the constitutional standard of materiality in the sense of a `crucial, critical, highly significant factor.'"); see also United States v. Till, 609 F.2d 228, 229 (5th Cir.1980)4 (reversing conviction where evidence was excluded that was "highly relevant and material to the entrapment defense"); United States v. Herrera, 600 F.2d 502, 505 (5th Cir.1979) (reversing district court's exclusion of evidence that the defendant had been threatened because such evidence was directly relevant to the defendant's affirmative defense of duress). In applying this rule, we have recognized that "if there is simply no other practical means to prove the point, then the need factor points strongly toward receipt of such evidence." United States v. Cohen, 888 F.2d 770, 776 (11th Cir.1989) (quotations and citation omitted).
15
Hurn is unable to articulate a constitutional violation under this theory. She contends that Felser was going to testify about her continued eligibility for benefits under the "concurrent dissimilar employment" doctrine. None of the elements of 18 U.S.C. § 1920 directly address a defendant's continued eligibility for benefits. Moreover, Hurn did not offer an affirmative defense to which this testimony would be directly material. Consequently, Hurn must advance a different theory under which the court wrongfully excluded this testimony.
B.
16
A defendant also has the right to introduce evidence that is not directly relevant to an element of the offense, but that makes the existence or non-existence of some collateral matter somewhat more or less likely, where that collateral matter bears a sufficiently close relationship to an element of the offense. In United States v. Sheffield, 992 F.2d 1164 (11th Cir.1993), for example, the defendant was an Air Force employee convicted of embezzling U.S. Government property because he ordered his subordinates to produce fishing lures for his personal use. He attempted to demonstrate that this was part of a legitimate, authorized custom on the base of making retirement presents for high-ranking civilian and military officials. The district court excluded all evidence concerning the existence of such a custom.
17
Evidence proving that such a custom existed was not directly relevant to any of the elements of embezzlement. Nevertheless, the existence of the custom was a collateral matter that was itself relevant to the mens rea element of the offense. That is, if the defendant was acting pursuant to an established, authorized custom, then he was not intentionally doing anything wrong. Id. at 1170 ("Evidence of the gift-making custom was relevant to [the defendant's] state of mind when he ordered the production of fishing lure molds."). Consequently, exclusion of the evidence violated the defendant's rights. Id. Similarly, in United States v. Lankford, 955 F.2d 1545 (11th Cir.1992), the defendant was convicted of filing false tax returns. We reversed, however, because the district court had prevented a defense expert from testifying that the defendant's belief in the legality of his acts was reasonable. To be convicted of filing false tax returns, the government had to prove that the defendant acted "willful[ly];" that is, that he knew he was breaking the law. Id. at 1550. We recognized, however, that it would be difficult if not impossible for a defendant to introduce direct evidence specifically about his mental state. Consequently, he had to focus on providing circumstantial evidence concerning collateral matters, such as the reasonableness of his beliefs, from which the jury could infer what his mental state was. The more untenable his belief that he was acting legally, the less likely he actually held it. Id. at 1550-51. Because proof demonstrating the "reasonableness" of the defendant's beliefs was therefore indirectly relevant to an actual element of the offense ("willfulness") through a short chain of inferential reasoning, the defendant had the constitutional right to introduce it. Id. at 1551 ("By disallowing expert testimony on the gift/income issue, the trial court deprived [the defendant] of evidence showing that his asserted state of mind was reasonable. Accordingly, we hold that the exclusion of expert testimony on this issue was error.").
18
A defendant also has the constitutional right under this theory to introduce evidence concerning a collateral matter where the government attempts to use that collateral matter as the basis for securing a conviction. In United States v. Word, 129 F.3d 1209 (11th Cir.1997), for example, the government had introduced evidence that the defendant and her husband had a close relationship (a collateral matter). It invited the jury to infer, from the existence of this close relationship, that the defendant's husband had shared with her information about his criminal activities, causing her to have actual knowledge about them (an element of the offense with which she was charged). Id. at 1212. The defendant wished to rebut that inference by testifying that her husband "physically and emotionally abused her and ... that [he] did not share much information with her." Id. We held, "With the district court's exclusion of the proposed testimony of abuse (or similar evidence about a less-than-storybook relationship) [the defendant] had no means to defend against the government's contentions; and the jury did not hear the whole story about the relationship." Id. We concluded:
19
During trial, the government was able to argue inferences favorable to the prosecution based upon the romantic relationship between the two co-defendants while the defendant ... was prohibited from introducing evidence that told a different story about the relationship and that might have contradicted or undercut those inferences.
20
Id. at 1213. Consequently, we vacated the conviction and ordered a new trial based on the exclusion of evidence concerning this collateral matter.
21
Conversely, where the proffered evidence does not bear a logical relationship to an element of the offense or an affirmative defense, whether direct or indirect, a defendant has no right to introduce that evidence and a district court may properly exclude it. See Ramos, 933 F.2d 968, 974 (11th Cir.1991) (upholding district court's refusal to allow defendant to introduce evidence of a conversation between a confidential informant and allegedly corrupt DEA agents in New York because that testimony "did not link any improprieties between the [informant] and New York DEA agents to the [defendant] or the Miami DEA agents" who conducted the investigation of the defendant). Moreover, a district court may exclude evidence where the relationship between the evidence and the element of the offense or affirmative defense at issue is simply too attenuated. That is, there comes a point — and a district court is perhaps in the best position to judge this — when the chain of inferences linking evidence and the legally relevant point to be proven is simply too long, dubious, or attenuated to require that the evidence be introduced. See United States v. Gonzalez, 71 F.3d 819, 836 (11th Cir.1996) (upholding district court's decision to exclude testimony of an accident reconstruction expert because "whether appellant rammed the officers' car, or vice versa, was simply not adequately material to the crimes for which appellant stood charged at trial").
22
Hurn is unable to prevail under this theory because there is a crucial break in her proposed chain of reasoning. The existence of the "concurrent dissimilar employment" doctrine (a collateral matter) could only have reduced her motive to lie when filling out the documents (a factor which goes to the mens rea element of the offense) if she knew about it. Hurn does not argue on appeal that she had consulted with Felser prior to filling out the forms, and did not offer any other evidence to suggest that she was aware of the doctrine. Indeed, if it would take an expert's testimony to make a jury aware of the "concurrent dissimilar employment" doctrine, it is highly unlikely that she knew of it at the time she filled out the forms. Consequently, she failed to offer the vital link in the chain that would have made that collateral matter relevant to an element of the charged defense.
C.
23
A third facet of the defendant's right to present evidence is to introduce evidence that, while not directly or indirectly relevant to an element of an offense or affirmative defense, attacks the credibility of important government witnesses. In United States v. Davis, for example, we reversed a conviction because the trial court had excluded evidence, where
24
[t]he purpose of the proffered evidence was to discredit the key government witness ... without whom the government would have had no case against [the defendant].... No other impeachment evidence, except for [the key government witness'] admission of prior felony convictions and the circumstances surrounding his cooperation with the prosecution, was admitted.... The excluded evidence here would have gone further than character evidence. The two witnesses would have testified to [the witness'] reputation for lacking truth and veracity and that they would not believe him under oath.
25
639 F.2d 239, 244-45 (5th Cir.1981). Similarly, in Mills v. Estelle, 552 F.2d 119, 122 (5th Cir.1977), we held that a court should have permitted the defendant to introduced certain impeachment evidence because it "could have led the jury to draw an inference of bias" concerning the government's witness. Because Hurn's proffered testimony did not concern the credibility of a government witness, this doctrine is inapplicable.
D.
26
In some cases, the government's selective presentation of entirely truthful evidence can cast a defendant in an inaccurate, unfavorable light, or make entirely legitimate, normal, or accepted acts appear unusual or suspicious. In these situations, the defendant has the right to introduce additional evidence to dispel this unjustified taint, even if that evidence does not directly or indirectly bear on a particular element of an offense.
27
For example, in United States v. Todd, 108 F.3d 1329 (11th Cir.1997), the defendant was convicted of embezzling from an employee retirement fund plan. The government demonstrated that the defendant, along with his family members who worked for the company, received extremely high salaries. It relied on this evidence to show that the defendant "was motivated by greed and selfishness to fraudulently deprive the employees of the Plan's funds." Id. at 1333. Technically, a defendant's motives or character are irrelevant to a jury's determinations; nevertheless, as a practical matter, they cannot help but color the jury's verdict. Because the government had called these considerations into question through the use of accurate, yet nonetheless potentially misleading evidence, the defendant had the right to "complete the picture." We reversed the defendant's conviction because if he had been permitted "to introduce evidence of large employees' salaries and benefits [for all employees, not just his family members], the evidence ... could have put quite a different spin on the question of [the defendant's] intent and actions." Id. at 1324. This right is also implicated where the government's evidence, in itself, tends to make the defendant's acts appear unusual or suspicious, when in fact they are part of a normal, even accepted, routine. See Sheffield, 992 F.2d at 1170 ("Without this evidence of the gift making custom, production of fishing lure molds on a U.S. Air Force Base must have seemed to the jury like the oddball project of a renegade fisherman.... [T]his defendant should be allowed to present the gift-making evidence to put his actions in context....").
28
The right to place the government's evidence in context is not unlimited, however. In United States v. Funches, we affirmed a conviction despite the fact that some contextual evidence was excluded because "[h]ad the jury heard [the excluded evidence], the jury nonetheless would have lacked a reason in law not to convict." 135 F.3d 1405, 1408 (11th Cir.1998). Consequently, evidence introduced to "complete" a potentially misleading story offered by the government is pertinent only when it might color a jury's assessment of the material facts of the case.
29
In this case, Felser's testimony was not necessary to correct any misleading impressions that may have been created by the government's evidence. As discussed earlier, because neither Felser nor anyone else can testify that Hurn was aware of this doctrine, his testimony cannot be woven into a larger defense narrative. Moreover, none of the government's evidence focused on whether or not Hurn's benefits would actually have been reduced had she truthfully reported her income from painting. Consequently, she cannot argue that the government was unfairly attempting to use this collateral matter to her disadvantage.
30
In short, there is no theory under which Hurn's constitutional rights were violated by the exclusion of this evidence. Further undermining Hurn's argument on this point is the fact that the district court offered to instruct the jury on the "concurrent dissimilar employment" doctrine as a matter of law, but Hurn declined. Since this theory was the only matter to which Felser was going to testify, the district court's offer precluded any need for him to be called as a witness. By making this offer, the district court rendered any error in excluding Felser irrelevant. See United States v. Buckley, 586 F.2d 498, 503 (5th Cir.1978) (rejecting Sixth Amendment challenge to district court's exclusion of certain testimony due to lack of prejudice because other evidence concerning those facts was brought before the jury).
IV.
31
The defendant's final claim is that the evidence was not sufficient to prove Counts II and III of the indictment. These counts claimed that Hurn had perjured herself by failing to report income from a "business enterprise" on the 1032 Forms. Hurn argues on appeal that painting was a hobby; the fact that she occasionally sold a few paintings informally for a few hundred dollars did not make her art an enterprise. We are quite sympathetic to this argument, and might be inclined to reverse her convictions on these counts had this argument been raised at trial. As the government points out in its brief, however, Hurn failed to move at trial for a directed verdict of acquittal on this basis. Consequently, we review this conviction only for plain error. See United States v. Hunerlach, 197 F.3d 1059, 1068 (11th Cir.1999) ("Since the record does not show that Appellant raised this issue to the district court, our review of the district court's decision to deny the motion for judgment of acquittal on that basis is only for `plain error.'").5
32
To obtain a reversal under the plain error standard, a defendant must demonstrate, among other things, not only that the error violated her substantial rights (which this error arguably did), but that it "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993) (quotation marks and citation omitted; alteration in original). While the indictment alleged specifically that she lied about her income from "business enterprises," the form she filled out actually asked about income from a much broader range of sources.
33
A reasonable jury would have been fully justified in concluding that Hurn affirmatively lied on her forms, thus violating § 1920, even though her conduct did not actually fall within the narrow confines of the indictment. The forms asked whether she was "self-employed or involved in any business enterprise in the past 15 months." Moreover, they expressly directed her to "[r]eport ALL self-employment or involvement in business enterprises." The forms further specified that the employment to which they were referring "include[d] but [was] not limited to ... providing services in exchange for money, goods, or other services. The kinds of services which you must report include ... painting, contracting, child care, odd jobs, etc." Finally, the forms specifically stated, "Even if your activities were part-time or intermittent, you must report them." Upholding Hurn's conviction for lying on this form is hardly unfair; to the contrary, allowing her to escape punishment on a minor technicality in the indictment would be unjust.
The defendant's convictions are
34
AFFIRMED.
Notes:
1
We do not address the closely related question of when a district court's restrictions on a defendant's cross-examination of a prosecution witness violates the Sixth Amendment Confrontation ClauseSee U.S. Const. amend VI ("In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him....").
2
The modifier "generally" is used because otherwise relevant evidence may sometimes validly be excluded under the Rules of Evidence. Nevertheless, the fact that a particular rule of evidence requires the exclusion of certain evidence is not dispositive, as particular applications of a generally valid rule may unconstitutionally deny a defendant his rights under the Compulsory Process or Due Process ClausesSee Knight v. Dugger, 863 F.2d 705, 729 (11th Cir.1988) (noting that a conviction must be reversed where there is "either clear error by the trial courts in their evidentiary rulings or compelling reasons for exceptions to state evidentiary or procedural rules").
3
It is easier for a defendant to obtain a reversal on direct appeal on the basis of improperly excluded evidence than it is for a defendant to obtain a writ of habeas corpus on the same ground. "It is fundamental that federal courts possess only limited authority to consider state evidentiary rulings in a habeas proceeding by a state prisoner. Our inquiry must be limited to determining whether the evidentiary ruling was so prejudicial ... as to deny fundamental fairness to the criminal trial, thus violating the due process clause."Phillips v. Wainwright, 624 F.2d 585, 588 (5th Cir.1980) (quotation marks and citation omitted).
4
Decisions of the Fifth Circuit handed down prior to September 30, 1981, are binding in the Eleventh CircuitBonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc).
5
Had this been a bench trial, a motion for acquittal would not have been necessary to preserve Hurn's "sufficiency of the evidence" argument for appealSee Hall v. United States, 286 F.2d 676, 677 (5th Cir.1960) ("[T]here can be little or no need for a formal motion for a judgment of acquittal in a criminal case tried to a court without a jury upon the defendant's plea of not guilty. The plea of not guilty asks the court for a judgment of acquittal...."). | 01-03-2023 | 04-27-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/204876/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10994 ELEVENTH CIRCUIT
Non-Argument Calendar FEBRUARY 16, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 3:09-cr-00082-LC-1
UNITED STATES OF AMERICA,
lllllllllllllllllllllPlaintiff-Appellee,
versus
MICHAEL PHILLIP KESSLER,
lllllllllllllllllllllDefendant-Appellant.
_______________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(February 16, 2011)
Before BLACK, HULL and MARTIN, Circuit Judges.
PER CURIAM:
Michael Phillip Kessler appeals his convictions and sentences for
manufacturing more than 100 marijuana plants, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(B)(vii), and conspiracy to manufacture and possess with
intent to distribute more than 100 marijuana plants, in violation of 21 U.S.C. §§
846, 841(a)(1) and (b)(1)(B)(vii). Kessler raises several issues on appeal, which
we address in turn. After review, we affirm Kessler’s convictions and sentences.
I.
Kessler first argues there was insufficient evidence to support his
convictions because the testimony of his unindicted co-conspirator, Eric Rogers,
was so incredible that, as a matter of law, no rational trier of fact could rely upon
his testimony to sustain Kessler’s conviction. He argues Rogers was the only
person to connect him to the growing operation and letting his conviction stand on
the basis of Rogers’ testimony would result in a complete miscarriage of justice.
We review de novo the disposition of a defendant’s properly preserved
motion for judgment of acquittal. United States v. Perez-Tosta, 36 F.3d 1552,
1556 (11th Cir. 1994).
To obtain a conviction under § 841(a)(1), the Government had to prove
beyond a reasonable doubt that Kessler knowingly or intentionally manufactured
marijuana. See 21 U.S.C. § 841(a)(1). With regard to the conspiracy charge, the
Government had to prove: (1) an illegal agreement existed to manufacture or
2
possess with intent to distribute marijuana; (2) Kessler knew of the agreement; and
(3) Kessler knowingly and voluntarily joined the agreement. See United States v.
Charles, 313 F.3d 1278, 1284 (11th Cir. 2002).
Viewing all the evidence in the light most favorable to the Government,
there was sufficient evidence to support Kessler’s convictions. First, contrary to
Kessler’s assertion, Rogers did not provide the only testimony linking Kessler to
the home at 9014 Bone Bluff Drive. McCullom testified he rented the home to a
man named Michael Kessler and he was paid from Kessler’s bank account.
Kessler’s bank accounts revealed he had made monthly payments to McCullum.
Moreover, the home’s electricity was in Kessler’s name.
Further, Rogers’ testimony was not incredible as a matter of law.1 Rogers’
prior conviction, status as a cooperating witness, and capacity for truthfulness
were explored on both direct and cross-examination. The trial judge properly
instructed the jury on how to assess the credibility of witnesses and the particular
caution that should be exercised when assessing the credibility of a cooperating
witness. Thus, to the extent Rogers’ testimony was necessary to convict Kessler,
1
We have repeatedly acknowledged that credibility determinations should be made by the
jury. United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997) (collecting cases). Unless
the witness’s testimony was incredible as a matter of law, courts should not disturb the jury’s
credibility determination. Id.
3
the jury’s verdict implicitly reveals the jury found Rogers credible despite the
impeaching evidence presented. Kessler cannot establish Rogers’ testimony was
incredible as a matter of law merely by pointing out that he had lied in the past,
been involved in criminal activity, and stood to benefit from his testimony. See
United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir. 1985).
II.
Kessler also challenges the district court’s finding that the offenses of
conviction involved 100 or more marijuana plants. Kessler asserts: (1) only
Detective Tara Milstead testified there were 100 or more plants that were live and
mature, with leaves and readily observable root formation; (2) Milstead’s
credibility was impeached by the testimony of the other witnesses who did not
observe 100 or more marijuana plants; and (3) the district court’s reliance on the
jury’s special finding that the offenses involved 100 or more plants was not
specific enough to establish the threshold amount for triggering the ten-year
mandatory minimum sentence.
We review a district court’s factual findings regarding drug quantity for
clear error. United States v. Robinson, 935 F.2d 201, 205 (11th Cir. 1991).2
2
A district court’s factual findings are not clearly erroneous when they are supported by
the testimony of law enforcement officers. United States v. Shields, 87 F.3d 1194, 1196 n.1
(11th Cir. 1996) (en banc).
4
The Sentencing Guidelines provide that “a ‘plant’ is an organism having
leaves and a readily observable root formation (e.g., a marihuana cutting having
roots, a rootball, or root hairs is a marihuana plant).” U.S.S.G. § 2D1.1(c) cmt.
n.17; see also United States v. Foree, 43 F.3d 1572, 1579-81 (11th Cir. 1995)
(holding that for sentencing purposes, cuttings and seedlings are not marijuana
plants unless there is some readily observable evidence of root formation).
The district court did not clearly err when it found Kessler was responsible
for more than 100 marijuana plants and, thus, subject to a ten-year mandatory
minimum. First, Milstead’s testimony supported the district court’s finding.
Milstead testified three times about the amount of drugs found at 9014 Bone Bluff
Drive, and all three times she stated there were more than 200 marijuana plants.
She also testified she observed root formations on all the plants she counted.
Milstead’s testimony was not impeached by that of the other witnesses. To
the extent McCollum and Brinkeroff testified there were a smaller number of
plants, their estimates do not include plants that were found in the garage.
Moreover, Rogers testified there were 8 plants in one closet, roughly 50 plants in
the other closet, and 64 plants in the garage, and he was sure the cuttings had roots
when they were seized.
Further, the jury’s verdict supported the district court’s finding. The jury
5
was instructed that a marijuana plant is defined as an organism having leaves and a
readily observable root formation and that cuttings could not count as plants
unless they had some readily observable evidence of root formation. The jury then
specifically found both counts involved 100 or more marijuana plants.
Accordingly, we affirm Kessler’s convictions and sentences.
AFFIRMED.
6 | 01-03-2023 | 02-16-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/75904/ | 298 F.3d 1238
UTILITY AUTOMATION 2000, INC., Plaintiff-Counter-Defendant-Appellant,v.CHOCTAWHATCHEE ELECTRIC COOPERATIVE, INC., a corporation, Chelco Services, Inc., a corporation, Defendants-Counter-Claimants-Appellees,Geographic Information Services, Inc., an Alabama corporation, Movant-Appellee,Tom Gipson, Defendant-Appellee,Patterson & Dewar Engineers, Inc., a corporation, Defendant.
No. 01-16265.
United States Court of Appeals, Eleventh Circuit.
July 24, 2002.
J. Jeffery Rich, Sirote and Permutt, PC, Huntsville, AL, for Plaintiff-Counter-Defendant-Appellant.
Scott B. Smith, Bradley, Arant, Rose & White, Birmingham, AL, John David Watson, III, Huntsville, AL, for Defendants-Counter-Claimants-Appellees.
Appeal from the United States District Court for the Northern District of Alabama.
Before BARKETT and MARCUS, Circuit Judges, and SCHLESINGER*, District Judge.
BARKETT, Circuit Judge:
1
Utility Automation 2000, Inc. ("UA 2000") appeals the district court's denial of its motion for attorneys' fees following the court's entry of a Rule 68 judgment against Choctawhatchee Electric Cooperative, Inc., Chelco Services, Inc., and Tommie Gipson (collectively, "Defendants"). UA 2000 originally sued Defendants1 for the misappropriation of UA 2000's trade secrets in violation of the Alabama Trade Secrets Act, Ala.Code § 8-27-1 et seq. (1975), breach of contract, and intentional interference with a business or contractual relationship. In its complaint, UA 2000 also sought recovery of its attorneys' fees under the Trade Secrets Act and the contract between UA 2000 and Chelco.
2
Prior to trial, Defendants served upon UA 2000 an offer of judgment pursuant to Rule 68 of the Federal Rules of Civil Procedure, which authorizes a defendant to make an offer of judgment "for the money... specified in the offer, with costs then accrued." Fed.R.Civ.P. 68. Defendants' offer provided:
3
Defendants ... hereby make the following Offer of Judgment pursuant to Federal Rule of Civil Procedure 68; that Defendants shall pay to Plaintiff [UA 2000] the sum of Forty-five thousand and 00/100 Dollars ($45,000) with costs accrued, and that Defendant, Chelco Services, Inc., shall refrain from competing with Plaintiff for a period of thirty (30) days from the date of acceptance of this Offer.
4
UA 2000 accepted the offer of judgment, and the district court entered a Final Judgment ordering that
5
Plaintiff Utility Automation 2000, Inc. have and recover of Defendants Choctawhatchee Electric Cooperative, Inc., Chelco Services, Inc. and Tommie Gipson the sum of $45,000, with costs accrued, and that Defendant Chelco Services, Inc. shall refrain from competing with Utility Automation 2000, Inc. for a period of 30 days from August 25, 2000.
6
It is further ORDERED, ADJUDGED and DECREED that Defendants Choctawhatchee Electric Cooperative, Inc. and Chelco Services, Inc. take nothing in regard to their counterclaims asserted against Plaintiff Utility Automation 2000, Inc. and that said claims are hereby dismissed with prejudice.
7
Following the court's entry of the Final Judgment, UA 2000 submitted a motion for the attorneys' fees, costs, and expenses incurred prior to the service of the Rule 68 offer of judgment. The district court granted UA 2000's request for the recovery of costs in the amount of $5,220.50, but denied its motion for attorneys' fees, holding:
8
Because the underlying statute does not define "costs" to include attorneys' fees, Plaintiff's motion for an award of attorneys' fees is hereby DENIED. See Marek v. Chesny, 473 U.S. 1, 9, 105 S. Ct. 3012, 87 L. Ed. 2d 1 (1985); Arencibia v. Miami Shoes, Inc., 113 F.3d 1212, 1214 (11th Cir.1997).
9
UA 2000 appeals. The interpretation of Rule 68 is a legal question that we decide de novo. See Jordan v. Time, Inc., 111 F.3d 102, 105 (11th Cir.1997).
DISCUSSION
10
The question presented in this appeal is simply whether, having accepted Defendants' Rule 68 offer, UA 2000 may recover its attorneys' fees in addition to the $45,000 judgment award. Rule 68 provides:
11
At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.
12
Fed.R.Civ.P. 68.
13
As the Supreme Court has explained, "The plain purpose of Rule 68 is to encourage settlement and avoid litigation." Marek v. Estate of Chesny, 473 U.S. 1, 5, 105 S. Ct. 3012, 87 L. Ed. 2d 1 (1985). The rule accomplishes this objective with a two-part approach. First, Rule 68 allows a defendant to make a firm, non-negotiable offer of judgment. Unlike traditional settlement negotiations, in which a plaintiff may seek clarification or make a counteroffer, a plaintiff faced with a Rule 68 offer may only accept or refuse. If he accepts, the court automatically enters judgment in his favor; if he refuses, the case proceeds. Second, the Rule encourages plaintiffs to accept reasonable offers through what is referred to as its "cost-shifting" provision, which forces a plaintiff who refuses an offer and then ultimately recovers less at trial than the offer amount to pay the costs incurred from the time of the offer. Thereby, "[t]he Rule prompts both parties to a suit to evaluate the risks and costs of litigation, and to balance them against the likelihood of success upon trial on the merits." Id.
14
The sole constraint Rule 68 places on offers of judgment is its mandate that an offer include "costs then accrued." This does not mean that every offer must explicitly state that it includes costs: "If an offer recites that costs are included or specifies an amount for costs, and the plaintiff accepts the offer, the judgment will necessarily include costs; if the offer does not state that costs are included and an amount for costs is not specified, the court will be obliged by the terms of the Rule to include in its judgment an additional amount which is in its discretion." Marek at 5, 105 S. Ct. 3012. Thus, as long as an offer does not explicitly exclude costs, it is proper under the Rule.
15
Rule 68 does not define the meaning of the term "costs," however, and consequently parties frequently dispute whether attorneys' fees are included. In Marek, the Supreme Court considered one such dispute, addressing when attorneys' fees might be included as costs for the purposes of Rule 68's cost-shifting provision. Marek held that the term "costs"
16
was intended to refer to all costs properly awardable under the relevant substantive statute or other authority. In other words, all costs properly awardable in an action are to be considered within the scope of Rule 68 "costs." Thus, absent congressional expressions to the contrary, where the underlying statute defines "costs" to include attorney's fees, we are satisfied such fees are to be included as costs for purposes of Rule 68.
17
Marek at 9, 105 S. Ct. 3012. The Marek plaintiff prevailed in a suit under 42 U.S.C. § 1983, but recovered an amount less than the defendant's prior Rule 68 offer. Although attorneys' fees are generally not recoverable as costs under what is known as the "American Rule,"2 the Supreme Court held that, because the relevant authority included attorneys' fees as part of the "costs" available to a prevailing plaintiff, those fees were subject to the cost-shifting provision of Rule 68, and the defendant was therefore not responsible for them.3
18
In Arencibia v. Miami Shoes, Inc., 113 F.3d 1212 (11th Cir.1997), this Court was asked whether the Marek rationale also applies when a plaintiff has accepted a Rule 68 offer for a judgment sum, but where the offer does not mention costs or attorneys' fees.4 In deciding that question, this Court first explained that under Marek, when a Rule 68 offer is silent regarding the amount of costs, the district court must award an appropriate amount for costs in addition to the specified sum. "This authority to award costs," we explained, "arises from the phrase `with costs then accrued' in Rule 68." Arencibia at 1214 (citing Marek at 5-6, 105 S. Ct. 3012). We then held that the Marek rationale (interpreting the cost-shifting provision of the Rule) applies equally to the phrase "costs then accrued" applicable to an accepted Rule 68 offer. We explained that although the district court had properly retained jurisdiction to award costs, it could not include an award of attorneys' fees, because "`costs' awarded by virtue of Rule 68 ... only include attorney's fees if the underlying statute defines `costs' to include attorney's fees." Id. (emphasis added).5
19
The only issue before this Court in Arencibia was whether the district court could grant attorneys' fees as costs "by virtue of Rule 68." As did Arencibia, the present case deals with an accepted offer, and thus does not involve the cost-shifting provision of Rule 68 that was at issue in Marek. But this case presents another variation on the Rule 68 theme. The question here is not only whether attorneys' fees may be included as Rule 68 "costs then accrued," but also whether a plaintiff may recover fees authorized by statute or contract when the offer of judgment is silent or ambiguous as to whether such fees have been included in the offer of judgment or whether the plaintiff has otherwise waived the right to seek them. This issue has been addressed by the Seventh and the Ninth circuits.
20
In Webb v. James, 147 F.3d 617 (7th Cir.1998), a plaintiff suing under the Americans with Disabilities Act ("ADA") accepted a Rule 68 offer of judgment that stated only: "The Defendants ... hereby make an offer of judgment in the above-captioned matter in the amount of Fifty Thousand Dollars ($50,000.00) pursuant to Federal Rule of Civil Procedure 68." Id. at 619. The ADA allows the prevailing party to recover attorneys' fees, but does not define those attorneys' fees as part of the costs. Thus, as this Court did in Arencibia, the Webb court explained that under Marek, the plaintiffs could not recover fees as "costs then accrued" under Rule 68 because the underlying statute did not define attorneys' fees as costs. The Webb Court, however, went on to address the issue not discussed in Arencibia: whether the plaintiff could recover attorneys' fees directly under the statute (i.e., the ADA). The Seventh Circuit answered in the affirmative, explaining that, because "the ADA provides for an award of attorney's fees to a prevailing party," and because the court determined that the plaintiff had prevailed in his ADA claim, therefore he could recover attorneys' fees under the ADA.
21
The Ninth Circuit addressed a similar question in Nusom v. Comh Woodburn, Inc., 122 F.3d 830, 833-34 (9th Cir.1997). Nusom concerned an accepted offer of "$15,000, together with costs accrued to the date of this offer." (Thus, like the offer at issue here, the Nusom offer included specific mention of costs but did not mention attorneys' fees.) Both underlying statutes under which the plaintiff brought suit (the Truth in Lending Act (TILA) and Oregon's civil racketeering statute) provide for an award of attorneys' fees to the prevailing party, separate from costs. Nusom held that, as the prevailing party, the plaintiff was entitled to attorneys' fees under the relevant statutes.
22
In both Webb and Nusom, the defendants claimed that attorneys' fees were included in the judgment sums, and thus to award them pursuant to the statute would effectively be to grant the plaintiffs double recovery. In Webb, the defendant (Dick James) argued that Webb's attorneys' fees had been included in the $50,000 sum. The Seventh Circuit rejected this assertion, explaining that
23
defendants should bear the burden of the ambiguity created by their silence on fees. The ADA provides for attorneys' fees for the prevailing party and the defendants said nothing in their offer to terminate that statutory liability.... The defendant is always free to offer a lump sum in settlement of liability, costs and fees, but that is not what Dick James did here. Dick James' offer was silent as to fees and costs, and under these circumstances, the court may then award an additional amount to cover costs and fees.
24
Id. at 623. The Nusom Court likewise addressed the assertion by examining the specific language in the offer of judgment, and reached a similar conclusion: that the offer's silence regarding attorneys' fees created ambiguity with respect to whether the $15,000 sum included attorneys' fees. Nusom held that such ambiguity in the terms of an offer must be resolved against the drafter, and therefore the accepting party was not barred from seeking attorneys' fees. Id. at 835. Among other things, both Webb and Nusom therefore stand for the proposition that where an offer is ambiguous with respect to whether it includes fees, that ambiguity will be construed against the drafter.
25
An offer that does unambiguously include attorneys' fees, on the other hand, will bar the plaintiff who accepts it from seeking additional attorneys' fees under the relevant statute (or as "costs then accrued"). For example, in Nordby v. Anchor Hocking Packaging Co., 199 F.3d 390 (7th Cir.1999), the plaintiff sued under the Illinois Sales Representative Act, which expressly provides for an award of reasonable attorneys' fees to a plaintiff "whose rights under the Act have been violated." Id. at 391. Accordingly, the plaintiff's complaint requested attorneys' fees in addition to damages. Before going to trial, the plaintiff accepted a Rule 68 offer for "judgment in the amount of $ 56,003.00 plus $ 1,000 in costs as one total sum as to all counts of the amended complaint" (emphasis supplied), and then moved the district court for an award of attorneys' fees pursuant to the Illinois Act. Id. Nordby held that the plaintiff could not obtain fees because the accepted offer had unambiguously included attorneys' fees.
26
These cases show that in the appropriate circumstances a plaintiff may be entitled to attorneys' fees under the "costs then accrued" phrase from Rule 68 itself, and, independently, under the statute or other authority that gave rise to the suit. In this case, UA 2000 claims both of these bases for recovery. Thus, the questions presented are: first, whether the accepted $45,000 sum unambiguously included attorneys' fees or whether the offeree otherwise waived the right to seek them; second, whether fees are available in this case as "costs accrued" under Rule 68; and third, whether fees are otherwise available pursuant to any other relevant authority.
27
1. Were Attorney Fees Included in the Offer or Otherwise Waived by UA 2000?
28
Defendants contend that the $45,000 judgment amount included UA 2000's attorneys' fees. In assessing this claim, we first note that the offer says nothing one way or the other about fees; attorneys' fees are not mentioned at all. Moreover, unlike the offer in Nordby, the offer here does not contain any language suggesting the inclusiveness of all sums due. Nor does the offer contain language excluding the payment for any claim. It simply offers an amount with costs. So we — much as the offerees — are left to speculate whether the offer was intended to include attorneys' fees or not.
29
As discussed above, however, Rule 68 requires that the responsibility for clarity and precision in the offer must reside with the offeror. As Nusom explained, any ambiguity in the terms of an offer must be resolved against its drafter, and therefore, absent a clear indication to the contrary the accepting party cannot be deemed to have received its fees or waived the right to seek them. Nusom at 835. There is good reason for this stricture:
30
Because Rule 68 puts plaintiffs at their peril whether or not they accept the offer, the defendant must make clear whether or not the offer is inclusive of fees.... As with costs, the plaintiff should not be left in the position of guessing what a court will later hold the offer means.
31
Webb at 623. Indeed, Rule 68 places the offerree in a most unusual posture in the landscape of settlement contracts. While an offeree can respond to an ordinary settlement offer through a counteroffer or seek to clarify or modify its terms, a Rule 68 offeree is at the mercy of the offeror's choice of language and willingness to conform it to the understanding of both parties. Only the offeror can ensure that the offer clearly includes or excludes fees.
32
Here, there is nothing in the language of Defendants' bare offer of "$45,000 with costs accrued" to indicate that the $45,000 sum includes fees or that accepting the offer otherwise waives UA 2000's ability to recover them under Rule 68 or any other authority. Thus, this ambiguity must be construed against Defendants, and we conclude that the offer they made to UA 2000 did not include attorneys' fees. Consequently, we next turn to the question of whether UA 2000 is entitled to fees either as costs pursuant to Rule 68 or as attorneys' fees pursuant to any other relevant authority.
33
2. Attorneys' fees as Costs Pursuant to Rule 68
34
In Arencibia, we explained that a plaintiff who accepts a Rule 68 offer may recover attorneys' fees as "costs then accrued" if the "relevant substantive statute or other authority" defines costs to include attorneys' fees. Arencibia at 1214. It is clear to us that the relevant statute in this case does not define attorneys' fees as "costs." The Alabama Trade Secrets Act authorizes the recovery of attorneys' fees when a party bringing a claim under the Act proves "willful and malicious misappropriation" of a trade secret. Ala.Code § 8-27-4 (1975). However, there is no language in the Trade Secrets Act to indicate that attorneys' fees should be considered part of costs. In contrast, where courts have found that attorneys' fees were defined as costs, it was because the statute stated so clearly. For example, Marek explained that attorneys' fees are costs under section 407 of the Communications Act of 1934 because under that act "[i]f the petitioner shall finally prevail, he shall be allowed a reasonable attorney's fee, to be taxed and collected as a part of the costs of the suit," and similarly under the Railway Labor Act, because that statute allowed a court to "award to the prevailing party a reasonable attorney's fee as part of the costs." 473 U.S. at 8, 105 S. Ct. 3012 (emphasis added). Similarly, in Jordan v. Time, 111 F.3d 102 (11th Cir.1997), we found that attorneys' fees are costs under 17 U.S.C. § 505 because that statute states that a court may award a reasonable attorney's fee to the prevailing party "as part of the costs."
35
Unlike those examples, the Trade Secrets Act does not award attorneys' fees to the prevailing party as part of costs; rather, it makes attorneys' fees an additional penalty for willful misappropriation. Thus, it does not satisfy the Marek rule. See also Oates v. Oates, 866 F.2d 203 (6th Cir.1989) (holding that attorneys' fees are not costs where the statute speaks of "costs" in the context of damages, and explaining that "[i]n the absence of unambiguous statutory language defining attorney's fees as an additional component of costs, and a clear expression by Congress of an intent to carve out an exception to the American Rule ... attorney's fees are not `costs' for purposes of Rule 68").
36
Alternatively, UA 2000 argues that it is entitled to fees as Rule 68 costs accrued if its contract with Chelco defines fees as costs. In Marek, the Supreme Court held that the term "costs" in Rule 68 "was intended to refer to all costs properly awardable under the relevant substantive statute or other authority." Marek at 9, 105 S. Ct. 3012 (emphasis supplied). We agree with UA 2000 that this reference to "other authority" means that Rule 68 costs can be awarded if a contract under which a plaintiff brings suit defines attorneys' fees as costs. See also Kessler v. Superior Care, Inc., 127 F.R.D. 513, 518 (N.D.Ill., 1989) (suggesting that Marek's reference to "other authority" might refer to underlying contracts). In this case, however, we cannot agree that the contract does in fact clearly and unambiguously define costs as fees.
37
The three relevant contract provisions are as follows:
38
5. It is further agreed that disclosure of such proprietary information, whether directly or indirectly, of UA 2000, except with the express written consent of UA 2000, would be deemed material and would result in material and irreparable injury to UA 2000 not properly or completely compensable by damages in an action at law; and that the provisions of this Agreement are necessary for the protection of UA 2000 and that any breach of this Agreement by [Chelco Services] or any of [Chelco Services]'s representatives shall entitle UA 2000, in addition to other legal remedies available to apply to a court of competent jurisdiction to enjoin any violation of this Agreement and/or to recover damages for any breach of this Agreement, and to recover all costs of such action, including a reasonable attorneys' fee.
39
* * *
40
6. It is hereby agreed by the parties hereto that any breach of this provision shall entitle the non-breaching party, in addition to any other legal remedies available to apply to a court of competent jurisdiction to enjoin any violation of this agreement and/or to recover damages for any breach of this agreement, and to recover all costs of such action, including a reasonable attorneys' fee.
41
* * *
42
19. Legal Fees. In the event either party incurs legal expenses to enforce or interpret any provision of this Agreement, the prevailing party shall be entitled to recover such legal expenses, including, without limitation, reasonable attorney's fees, court costs and all related expenses, in addition to any additional and other relief to which such party shall be entitled.
43
(emphasis supplied).
44
Provisions 5 and 6 clearly define costs to include attorneys' fees. Provision 5 enables UA 2000 to seek legal and equitable remedies for disclosure of its proprietary information, and "to recover all costs of such action, including a reasonable attorneys' fee." Likewise, provision 6 allows a non-breaching party to sue a breaching party for legal and equitable relief, and also "to recover all costs of such action, including a reasonable attorneys' fee." The most straightforward interpretation of the phrase "costs ... including a reasonable attorneys' fee" is that the contracting parties consider attorneys' fees to be part of costs. See, e.g., Marek at 8, 105 S. Ct. 3012 (explaining that Section 4 of the Clayton Act, 15 U.S.C. § 15 (1976), makes attorneys' fees part of costs because it provides for recovery of "the cost of suit, including a reasonable attorney's fee").
45
However, as Defendants point out, provision 19 of the contract appears to suggest that legal fees are distinct from costs by subsuming certain delineated "costs" under the rubric of "legal fees," among which are attorneys' fees: "the prevailing party shall be entitled to recover such legal expenses, including, without limitation, reasonable attorney's fees, court costs and all related expenses, in addition to any additional and other relief to which such party shall be entitled." Defendants argue that the ambiguity created by provision 19 trumps whatever clear expression is found in provisions 5 and 6, and that we must therefore conclude that the parties did not intend to treat attorneys' fees as costs.
46
We think Defendants have the better of this argument, primarily because the American Rule establishes a strong presumption that fees are not to be awarded as costs. In light of that presumption, we interpret Marek to require that the underlying authority unequivocally indicate that it is carving out an exception to the American Rule. Provision 19 of the contract differentiates between fees and other costs; thus we are unwilling to say that the contract as a whole makes fees part of costs. Accordingly, UA 2000 is not entitled to fees as Rule 68 "costs accrued."6
47
3. Attorneys' fees Pursuant to Statute or Other Relevant Authority
48
We next consider whether UA 2000 is entitled to attorneys' fees directly under the Trade Secrets Act or the contract. As noted above, although not as part of costs, the Alabama Trade Secrets Act does authorize the recovery of attorneys' fees upon proof of the "willful and malicious misappropriation" of a trade secret. Ala. Code § 8-27-4 (1975). UA 2000 asks us to construe the offer of judgment as an admission of willful and malicious misappropriation. We do not find this to be a tenable proposition. Such a finding is vastly different from the simple conclusion that one party has prevailed against another, and we are unwilling to impute a specific admission to "willful and malicious misappropriation" on the basis that the Defendants have had a judgment entered against them when there is nothing in Defendants' offer of judgment that would even suggest that admission.
49
We do, however, find that UA 2000 is entitled to attorneys' fees under its contract with Chelco. Clause 19 of the contract states:
50
Legal Fees. In the event either party incurs legal expenses to enforce or interpret any provision of this Agreement, the prevailing party shall be entitled to recover such legal expenses, including, without limitation, reasonable attorney's fees, court costs and all related expenses, in addition to any additional and other relief to which such party shall be entitled.
51
Thus, the contract grants attorneys' fees to the "prevailing party" in any action to "enforce or interpret any provision of this Agreement."7 UA 2000 brought this suit, at least in part, to enforce provisions of the contract, and we think the judgment in this case is sufficient to establish that UA 2000 has "prevailed" in its suit. Our conclusion derives from the Supreme Court's guidance in Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep't. of Health and Human Res., 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001).
52
Prior to Buckhannon, courts attempted to determine whether a party was a "prevailing party" for the purpose of recovering attorneys' fees primarily by weighing the relief obtained against the relief sought. See, e.g., Fletcher v. City of Fort Wayne, 162 F.3d 975, 976 (7th Cir.1998) ("A plaintiff who recovers only nominal damages technically `prevails,' ... but a judge has discretion to withhold fees when damages are tiny in relation to the claim.... In other words, for trivial recoveries the only reasonable award of fees is zero."). In Buckhannon, however, the Supreme Court defined a prevailing party as "[a] party in whose favor a judgment is rendered, regardless of the amount of damages awarded." 532 U.S. at 603, 121 S. Ct. 1835 (quoting Black's Law Dictionary 1145 (7th ed. 1999)). In holding that a plaintiff was not entitled to an award of attorneys' fees when the lawsuit had been dismissed as moot, even though it appeared that the suit had induced the legislation that rendered the action moot, the Court explained that a "material alteration of the legal relationship of the parties" is necessary to permit the award. Id. at 604, 121 S. Ct. 1835 (quoting Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-793, 109 S. Ct. 1486, 103 L. Ed. 2d 866 (1989)). The Court gave two examples of judicial outcomes that satisfy this requirement: an enforceable judgment on the merits or a settlement agreement enforced through a court-ordered consent decree. Id. An enforceable judgment establishes a plaintiff as a prevailing party because the plaintiff has received at least some relief based upon the merits of a claim. Id. A consent decree also passes the test because "[a]lthough [it] does not always include an admission of liability by the defendant, ... it nonetheless is a court-ordered `change [in] the legal relationship between [the plaintiff] and the defendant.'" Id. (quoting Texas State Teachers at 792, 109 S. Ct. 1486).
53
Although Buckhannon does not specifically mention Rule 68 offers of judgment, we find its rationale equally applicable in the present context. Admittedly, an offer of judgment falls somewhere between a consent decree and the minimalist "catalyst theory" the Court rejected in Buckhannon. Unlike a consent decree, the court exercises little substantive review over a Rule 68 offer; upon notification that the plaintiff has accepted the offer, the court mechanically enters judgment. However, the court does ensure that the offer conforms with the Rule (it must include costs). More importantly, an accepted offer has the "necessary judicial imprimatur" of the court, Buckhannon at 605, 121 S. Ct. 1835 (emphasis in original), in the crucial sense that it is an enforceable judgment against the defendant. Thus, unlike a "defendant's voluntary change in conduct" or a purely private settlement resulting in a dismissal, a Rule 68 judgment represents a "judicially sanctioned change in the relationship between the parties." Id. Indeed, this Court recently held that a district court's approval of a private settlement along with its explicit retention of jurisdiction to enforce the settlement terms, made the settlement the functional equivalent of a consent decree as described in Buckhannon, and thus rendered the plaintiff a prevailing party under the ADA. See American Disability Ass'n, Inc. v. Chmielarz, 289 F.3d 1315 (2002). In the present case, the judgment included not only $45,000 in damages, but also a thirty-day non-competition injunction (a remedy specifically contemplated in provisions 5 and 6 of the contract). As in Chmielarz, the terms of the judgment here are subject to the court's power to enforce. We conclude that UA 2000 was the prevailing party in its suit to enforce the contract. As the prevailing party, UA 2000 is entitled to attorneys' fees under the contract.
CONCLUSION
54
We note, as have other courts, that defendants can easily preempt the dispute exemplified here, as well as others, by clearly stating their intent in the offer of judgment. We echo the Seventh Circuit in cautioning that "[t]he prudent defendant... will mention [attorneys' fees] explicitly, in order to head off the type of appeal that we [are] wrestling with here." Nordby v. Anchor Hocking Packaging Co., 199 F.3d 390, 393 (7th Cir.1999).
55
Lastly, we have not had occasion to determine whether the amount UA 2000 requests for attorneys' fees — approximately $61,000 — is in fact a reasonable sum. Therefore, in remanding to the district court, we do so with the expectation that the district court will determine a suitable amount of attorneys' fees.
56
The district court's order denying attorneys' fees is REVERSED and REMANDED with instructions to award UA 2000 a reasonable attorneys' fee.
Notes:
*
Honorable Harvey E. Schlesinger, U.S. District Judge for the Middle District of Florida, sitting by designation
1
Several other defendants who were originally parties to the suit were dismissed pursuant to settlement agreements
2
In England recoverable costs often included attorneys' fees; under the "American Rule" each party has traditionally been required to bear its own attorney's feesSee Marek at 8, 105 S. Ct. 3012.
3
The specific facts inMarek were as follows. The plaintiff, suing under 42 U.S.C. § 1983, had rejected of an offer of settlement "for a sum [$100,000], including costs now accrued and attorneys' fees." Marek at 9, 105 S. Ct. 3012. The case went to trial and the plaintiffs were ultimately awarded $57,000. Relying on 42 U.S.C. § 1988, which provides that a prevailing party in a § 1983 action may be awarded attorneys' fees "as part of the costs," the plaintiffs then filed a request for costs and attorneys' fees totaling approximately $171,000 ($32,000 of which plaintiffs had incurred prior to the Rule 68 offer and $139,000 after). The defendants opposed the claim for the $139,000 post-offer costs, relying on Rule 68's cost-shifting provision and arguing that attorneys' fees were part of the "costs" covered by Rule 68 because § 1988 defines them as such. The Supreme Court agreed.
4
The accepted offer of judgment inArencibia did not mention either costs or fees, but simply offered judgment "in the amount of $4000.00." Arencibia accepted, and attached to his acceptance a proposed order entering judgment in favor of Arencibia for $4,000 and reserving jurisdiction to award costs and attorneys' fees. The defendant-offeror objected, contending that the Rule 68 offer only provided for costs and not fees.
5
Specifically, the plaintiff inArencibia sued under § 16(b) of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b). Because § 16(b) of FLSA does not define "costs" to include attorneys' fees, this Court held that the district court had erred by reserving jurisdiction to award the plaintiff attorneys' fees as Rule 68 "costs."
6
Because we conclude that the relevant authority does not define fees as part of costs, we do not reach, in this context, the defendant's alternative argument that even if costs were deemed to include fees, UA 2000 would still not be entitled to fees as Rule 68 "costs then accrued" because the Trade Secrets Act provides for them only if the plaintiff proves "willful and malicious misappropriation" of a trade secret, and the contract provides them only to party that prevails or shows some form of disclosure or breach. Consistent with that argument, some courts have determined that a plaintiff is notautomatically entitled to fees as Rule 68 "costs then accrued," but must also satisfy whatever condition is attached to a fee award in the relevant statute or other authority. See, e.g., Fletcher v. City of Fort Wayne, 162 F.3d 975 (7th Cir.1998); Fisher v. Kelly, 105 F.3d 350, 352 (7th Cir. 1997); Tri-Star Management Group, Ltd. v. Samson, 8 F.3d 820 (4th Cir.1993) (table); Lyte v. Sara Lee Corp., 950 F.2d 101, 103 (2d Cir.1991); Stefan v. Laurenitis, 889 F.2d 363 (1st Cir.1989).
However, in Jordan v. Time, 111 F.3d 102 (11th Cir.1997), this Court held that a plaintiff who prevailed, but for less than the Rule 68 offer amount, automatically had to pay the defendant's fees, because the underlying statute (the Copyright Act, 17 U.S.C. § 505) defined fees as costs, and notwithstanding that the Copyright Act grants attorneys' fees only to the "prevailing party." In contrast, the D.C., First, Fourth, Fifth, Seventh, Eighth, and Ninth Circuits have held that when a plaintiff rejects an offer and ultimately receives less than the offer amount in a suit brought under a statute that awards attorneys' fees as part of costs to a prevailing party, Rule 68's cost-shifting provision will not shift the defendant's post-offer attorneys' fees to the plaintiff because the defendant has not "prevailed" under the statute (although the cost-shifting provision will shift the defendant's other post-offer costs to the plaintiff). See, e.g., Harbor Motor Company, Inc. v. Arnell Chevrolet-Geo, Inc., 265 F.3d 638 (7th Cir. 2001); Poteete v. Capital Engineering, Inc., 185 F.3d 804, 807 (7th Cir.1999); Tunison v. Continental Airlines Corp., Inc., 162 F.3d 1187, 1190 (D.C.Cir.1998); United States v. Trident Seafoods Corp., 92 F.3d 855 (9th Cir. 1996); E.E.O.C. v. Bailey Ford, Inc., 26 F.3d 570, 571 (5th Cir.1994); Lawrence v. Hinton, 937 F.2d 603 (4th Cir.1991); O'Brien v. City of Greers Ferry, 873 F.2d 1115, 1120 (8th Cir.1989); Crossman v. Marcoccio, 806 F.2d 329, 333-334 (1st Cir.1986). Indeed, Jordan has been criticized. See, e.g., Harbor Motor at 647 ("[Jordan] does not, in our view, adequately address the Copyright Act's mandate that only the prevailing party is permitted to recover its attorney's fees."); Bruce v. Weekly World News, Inc., 203 F.R.D. 51, 56 (criticizing Jordan for interpreting "Rule 68 as providing a substantive gloss on the provisions of the Copyright Act," and "virtually compel[ling] copyright plaintiffs ... to accept an Offer of Judgment no matter how meritorious may be their case, for fear of resulting exposure to what are often, as here, substantial claims of attorney's fees").
Those criticisms, however, are less persuasive when the question has to do with the prevailing plaintiff's automatic entitlement to fees under Rule 68, because the defendant will always be able to protect itself against paying fees by making its intent clear in the offer. As far as we are able to discern, the Ninth Circuit appears to agree, automatically awarding fees as costs accrued to a plaintiff who accepts an offer when the relevant authority satisfies the Marek test. See Erdman v. Cochise County, 926 F.2d 877, 879 (9th Cir. 1991) (holding that because "`costs' in actions under 42 U.S.C. § 1983 automatically include attorney fees under 42 U.S.C. § 1988," plaintiff "was entitled to rely on the plain language of the offer he accepted, `$7,500 with costs now accrued,' which [under Marek] entitles him to a reasonable attorney's fee award in addition to the lump sum named in the offer") (emphasis added).
7
In addition, provision 5 of the contract grants attorneys' fees to UA 2000 if Defendants disclose UA 2000's proprietary information. Provision 6 states that any breach of the contract shall entitle the non-breaching party to recover all costs of such action, including a reasonable attorneys' fee
MARCUS, Circuit Judge, specially concurring:
57
I concur in the majority's thoughtful and thorough opinion but write separately to stress what I take to be its limits. Insofar as the majority's opinion determines that a plaintiff accepting a Rule 68 offer that includes injunctive relief is a "prevailing party," I concur. I think, however, that the majority's opinion may aim to resolve the question of whether accepting any Rule 68 offer — even one not including injunctive relief — renders a plaintiff a "prevailing party." Because this question need not be addressed on the peculiar facts of this case, I do not believe the majority's opinion should be read to resolve it.
58
At issue in this appeal is whether a plaintiff who has accepted a Rule 68 offer including costs but silent on its face about attorney's fees may recover its attorney's fees either through operation of the Rule 68 offer itself or through other means when the authorities underlying the suit are ambiguous about whether the term "costs" is defined to include attorney's fees. The majority holds, correctly in my view, that such a plaintiff may not rely on the Rule 68 offer itself, but may be entitled to recover its attorney's fees through independently available means, such as a contractual or statutory provision awarding fees to a "prevailing party."
59
In determining that the plaintiff in this case, Utility Automation 2000, Inc., ("UA 2000") is entitled to its attorney's fees under such a "prevailing party" provision, the majority appears to conclude that the acceptance of any Rule 68 offer renders a plaintiff a "prevailing party." I am convinced we can resolve this case on narrower and surer grounds, however, because the injunctive relief contained in the Rule 68 offer in this case plainly renders UA 2000 a "prevailing party." Accordingly, I would reserve for another case the broader and more difficult question of whether accepting any Rule 68 offer makes a plaintiff a "prevailing party."
60
The difficulty in the broader question arises from the lack of judicial review ordinarily afforded the terms of a Rule 68 offer. As noted by the majority, the Supreme Court has recently determined that, to be a "prevailing party," a party must obtain "a judicially sanctioned change in the legal relationship of the parties." Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 605, 121 S. Ct. 1835, 1840, 149 L. Ed. 2d 855 (2001) (emphasis added).1 It is not, however, altogether clear to me that an ordinary Rule 68 judgment can be said to be "judicially sanctioned." While a Rule 68 judgment is, like any other judgment including those entered pursuant to consent decrees, directly enforceable by the court,2 entry of a Rule 68 judgment is generally "ministerial rather than discretionary," Webb v. James, 147 F.3d 617, 621 (7th Cir.1998), leaving a district court no room to review the terms of a Rule 68 offer. See Jordan v. Time, Inc., 111 F.3d 102, 105 (11th Cir.1997) ("[T]he mandatory language of the rule leaves no room for district court discretion. When a proper Rule 68 offer is made and the other requirements of the rule are met, the district court must award costs measured from the time the offer was served."); Mallory v. Eyrich, 922 F.2d 1273, 1278 (6th Cir.1991) ("The district court retains no discretion under Rule 68 to alter the rule's sometimes severe application. Operation of Rule 68 is mandatory."). As the majority itself notes, a Rule 68 judgment thus seems to bear a fainter judicial imprimatur than, say, a consent decree, the terms of which a district court must review before entering. See ante at 1248 ("Admittedly, an offer of judgment falls somewhere between a consent decree and the minimalist `catalyst theory' the Court rejected in Buckhannon.").
61
Is this faint judicial imprimatur enough to render a plaintiff "prevailing" as that term has been construed by Buckhannon? I am uncertain of the answer to this question. Buckhannon only instructs us that "enforceable judgments on the merits" and "court-ordered consent decrees" bear a sufficient judicial imprimatur to render a party "prevailing," Buckhannon, 532 U.S. at 604, 121 S. Ct. at 1840, while a private settlement does not, see id., 532 U.S. at 605, 121 S. Ct. at 1840 ("A defendant's voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change.") (emphasis in original). Buckhannon does not describe how much or what kind of judicial imprimatur must be stamped on a judgment before it renders a party "prevailing." Because a Rule 68 judgment falls somewhere between a consent decree and a purely private settlement in the degree of judicial involvement in its entry and enforcement, we would be forced to navigate unfamiliar and uncertain terrain in determining on which side of the line Rule 68 judgments fall.
62
We are not, however, required to resolve that question in this case. While entry of a Rule 68 judgment is ordinarily "ministerial rather than discretionary," Webb, 147 F.3d at 621, "this general statement is too broad to encompass all instances in which Rule 68 offers are made," 12 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 3005 (2d ed. 1997). There are myriad settings in which a court has an independent duty, much like the duty created by a proposed consent decree, to review the terms of a settlement offer; Rule 68's operation does not relieve the court of that duty:
63
[I]n class actions the court has an independent duty under Rule 23(e) to decide whether a settlement is acceptable, and Rule 68 cannot remove that authority and duty. Beyond that, the court must retain authority to evaluate a proposed judgment for injunctive relief.... The decision whether to enter any injunction is ultimately within the court's discretion.... Certainly, the court may not enter an injunction that calls for an illegal act simply because the parties have agreed to it.... As a general matter, consent decrees present peculiar difficulties for courts, and they create particular risks regarding the possible impact or a resulting injunction on nonparties.
64
Id. (emphasis added). Thus, "[a]t least in cases seeking injunctions or similar judgments, therefore, the court cannot be compelled to enter the agreed judgment even though it emerged from a Rule 68 offer and acceptance." Id; see also Martin v. Mabus, 734 F. Supp. 1216, 1222 (S.D.Miss. 1990) ("[T]he procedures prescribed by rule 68 for making an offer of judgment are literally inapplicable because rule 23(e) requires that court approval be obtained in order for a case to be dismissed or compromised.").
65
Essentially, then, the presence of injunctive relief in a Rule 68 offer renders it the functional equivalent of a proposed consent decree by requiring a court to review the terms of the offer. Consequently, a Rule 68 judgment including injunctive relief clearly bears a sufficient judicial imprimatur to satisfy Buckhannon. Cf. Am. Disability Ass'n, Inc. v. Chmielarz, 289 F.3d 1315, 1319 n. 2 (11th Cir.2002) ("[T]he district court's explicit approval of the settlement and express retention of jurisdiction to enforce its terms, are the functional equivalent of a consent decree....").
66
Notably, the Rule 68 offer in this case included, in addition to an offer of $45,000, a promise by the defendants to "refrain from competing with Plaintiff for a period of thirty (30) days from the date of acceptance of this Offer." The presence of this proposed injunctive relief provided the district court with the authority, indeed imposed the obligation, to review its terms before entry. We should conclude, then, that the judgment entered pursuant to this offer renders UA 2000 a prevailing party. It is on these grounds that I would reverse the district court's denial of attorney's fees, while leaving for another day the more general question of whether all Rule 68 judgments satisfy Buckhannon.
Notes:
1
WhileBuckhannon's interpretation of "prevailing party" applies only to the "[n]umerous federal statutes [that] allow courts to award attorney's fees and costs to the `prevailing party,'" Buckhannon, 532 U.S. at 600, 121 S. Ct. at 1838, and does not by its own terms apply to state statutes or private contracts, the interpretation is of a common law term, incorporated into statute by numerous legislatures, which has long been in use both in federal and state courts. See id., 532 U.S. at 610-11, 121 S. Ct. at 1843 (Scalia, J., concurring) ("`Prevailing party' is not some newfangled legal term invented for use in late-20th-century fee-shifting statutes. By the long established practice and universally recognized rule of the common law, in actions at law, the prevailing party is entitled to recover a judgment for costs.") (citations and quotations omitted).
2
See, e.g., Mallory v. Eyrich, 922 F.2d 1273, 1276 (6th Cir.1991) (district court entered remedial order enforcing Rule 68 judgment). | 01-03-2023 | 04-26-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1625157/ | 689 S.W.2d 387 (1985)
Maurice LOVEJOY and Mellene Rivers, Plaintiffs-Appellants,
v.
George D. WEESE, Defendant-Respondent.
No. 48285.
Missouri Court of Appeals, Eastern District, Division One.
April 16, 1985.
Maurice Lovejoy, Mellene Rivers, pro se.
George D. Weese, pro se.
GAERTNER, Judge.
This tale of two $100.00 money orders has wended a tortuous path to this court through small claims court and trial de novo in the circuit court.[1] In the trial de novo, the mandate of § 482.310(3), to conduct proceedings in an informal manner, was certainly observed. As a result, the transcription of the electronically recorded hearing reflects almost chaotic disorder. The parties, the witnesses and the judge consistently seem to be interrupting each other. The transcript is replete with incomplete sentences, with unanswered questions, with two witnesses answering one *388 question, and with references to unidentified documents and persons. Circuit and associate circuit judges on trial de novo of a small claim will not be in violation of the statutory mandate of informality if they insist upon such minimal requirements of orderly procedure as permitting only one person to speak at a time, in requiring plaintiffs to present all of their evidence first, then the defense and such rebuttal and surrebuttal as may be appropriate and by identifying on the record the various speakers and documents described. Informality does not require disregard of orderly procedure.
The disorder of the transcript only compounds the confusing set of facts giving rise to this litigation. Plaintiffs purchased a $100.00 money order from defendant's store. They made the money order payable to one Evans and gave it to him in payment for some painting services. Evans attempted to cash the money order at defendant's store a few hours later. Defendant refused to cash the money order and called the police who took possession of the document.
Defendant's actions were precipitated by an incident related to him by one of his employees. The employee sold a $100.00 money order that same afternoon to one Ammerson. Ammerson returned to the counter in a matter of seconds or minutes and reported that he had lost the money order. The employee remembered the purchase and gave Ammerson another $100.00 money order. A stop payment order was then posted on the first money order issued to Ammerson. The cash register tape reflected this to be # 4971. Unfortunately, the money order purchased by plaintiffs and given to Evans was numbered 4971.
Plaintiffs' money order was taken from Evans by the police and later returned to defendant. Plaintiffs paid Evans a different $100.00 and brought this action in small claims court.
The money orders were not presented to the trial court, nor are they before us. However, plaintiffs advised the trial court they had a receipt for their money order and have filed with this court a copy of a receipt for a $100.00 money order numbered 4971. In the trial court defendant produced the cash register tapes which reflect the amount of each money order purchased and the identifying number of each sequentially. The trial judge noted duplicate numbers on the tape and in response to her inquiry about the duplication defendant's employee stated "it happened to be a coincidence, your honor," while the defendant himself stated, "the machine wasn't functioning property (sic). There was something wrong with there was something wrong with the fancy numbering."
Despite this admission regarding the duplication of numbers on the tape, defendant adopted the position that the dispute over the rightful ownership of a single money order was between plaintiffs and Ammerson. By the judgment in favor of defendant, the trial court apparently accepted this contention. We reverse.
That the money order purchased by plaintiffs was a negotiable instrument is undisputed. § 400.3-104, RSMo. 1978. Evans, designated by plaintiffs as the payee of the instrument, became a holder in due course when he accepted the money order in payment for services. § 400.3-302. As such, Evans was entitled to payment upon presentment of the order to defendant. § 400.3-413(1). Defendant, who presented no evidence, to refute Evans' status as a holder in due course, wrongfully dishonored the instrument by refusing payment. § 400.3-507. Even though plaintiffs could not reacquire the instrument from Evans upon paying him the $100.00 because the money order had been seized by the police, plaintiffs, by this payment, became entitled to assert all of Evans' rights against defendants because of the dishonor. § 400.3-603(2). Defendant's election to dishonor the money order when presented by plaintiff's designated payee in favor of crediting Ammerson's story of losing the money order was done at defendant's risk. The fact that the sequential numbering system showed the sale of two money orders with the same *389 number clearly points out the error of defendant's election.
The judgment of the trial court is unsupported by any evidence and is an erroneous application of the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Pursuant to the authorization of Rule 84.14, it is hereby ordered that the judgment of the trial court is reversed and judgment is entered in favor of plaintiffs and against defendant in the sum of $100.00 plus costs.
PUDLOWSKI, P.J., and KAROHL, J., concur.
NOTES
[1] In the spirit of the obvious legislative intent that the Small Claims Court Law, §§ 482.300 482.365, RSMo.1978, be construed so as to further its purposes of adjudicating matters involving less than $1,000.00 in an informal manner, we elect to overlook the precise requirements of the Rules of Appellate Procedure. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3034503/ | FILED
NOT FOR PUBLICATION MAR 04 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANTONIO LOPEZ-GARCIA, No. 08-73915
Petitioner, Agency No. A097-911-472
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 16, 2010 **
Before: FERNANDEZ, GOULD and M. SMITH, Circuit Judges.
Antonio Lopez-Garcia, a native and citizen of Guatemala, petitions for
review of a Board of Immigration Appeals order dismissing his appeal from an
immigration judge's decision denying his application for asylum, withholding of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
HL/Inventory
removal and protection under the Convention Against Torture (CAT). We have
jurisdiction under 8 U.S.C. § 1252. We review factual findings for substantial
evidence, Santos-Lemus v. Mukasey, 542 F.3d 738, 742 (9th Cir. 2008), and deny
the petition for review.
The record does not compel reversal of the IJ's conclusion that petitioner
failed to establish that the harm he suffered at the hands of gang members in
Guatemala was on account of a protected ground. See Ramos-Lopez v. Holder, 563
F.3d 855, 858-62 (9th Cir. 2009) (concluding that resistance to gang activity is not
a particular social group for the purpose of establishing nexus to a protected
ground); Molina-Morales v. INS, 237 F.3d 1048, 1051-52 (9th Cir. 2001) (personal
retribution is not persecution on account of a protected ground). Accordingly,
petitioner's asylum, withholding of removal, and CAT claims fail.
Contrary to petitioner's allegation, the BIA did not issue a streamlined
decision, and the BIA's decision did not constitute a due process violation. See
Falcon-Cariche v. Ashcroft, 350 F.3d 845, 849 (9th Cir. 2003).
PETITION FOR REVIEW DENIED.
HL/Inventory | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2861743/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-99-00077-CR
John Scott McGrath, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
NO. 98-468-K277, HONORABLE JOHN R. CARTER, JUDGE PRESIDING
Appellant John Scott McGrath pleaded guilty to forgery of a credit card slip. See
Tex. Penal Code Ann. § 32.21(b), (d) (West 1994). The district court adjudged him guilty and
assessed punishment at incarceration in a state jail for two years and a $2500 fine. The court
suspended imposition of sentence and placed appellant on community supervision.
The district court's judgment reflects that the punishment assessed is in accord with
a plea bargain agreement. By his third issue on appeal, appellant asserts that his plea was not
voluntarily made because the agreement was not clearly stated or understood by the parties. The
voluntariness of a negotiated guilty plea may be raised on appeal without regard to appellate rule
25.2(b)(3). See Hernandez v. State, 986 S.W.2d 817, 820 (Tex. App.--Austin 1999, pet. ref'd);
Tex. R. App. P. 25.2(b)(3).
The record contains a two-page document executed contemporaneously with the
guilty plea. The first page contains the admonishments required by statute. See Tex. Code Crim.
Proc. Ann. art. 26.13(a) (West 1989). The second page contains waivers of certain rights, a
judicial confession, and a statement of the plea bargain. In exchange for appellant's guilty plea,
the State agreed to recommend two years in a state jail, probated for five years, a $2500 fine, and
thirty days in jail as a condition of probation. Appellant's signature and that of his then-counsel
appear immediately below the statement of the agreement.
Appellant appeared in court with counsel on the same day the plea document was
signed. The proceedings began with defense counsel's statement, "Judge, this is an unnegotiated
plea." Appellant then pleaded guilty, was questioned by the court about his understanding of the
proceedings and of his waivers, and, after being sworn, acknowledged the truth of the allegations
in the indictment. After appellant testified, the following exchange between the court and the
parties took place:
THE COURT: This [the guilty plea document] has an offer on it. You are
rejecting that offer, is that what you are saying?
MR. PITTS [defense counsel]: Yes, sir, we wanted for you to have an opportunity
to read the pre-sentence investigation; and we wanted to put on some brief, very
brief testimony.
MR. TORREY [prosecutor]: . . . There is a plea bargain on State's Exhibit No.
1 that you have represented that you are going to take, except for your opportunity
to argue your case in terms of the service of jail time.
MR. PITTS: That's correct.
. . .
THE COURT: You are taking the two years probated for five years?
MR. PITTS: Yes, sir. Yes, sir.
The court then announced that it found appellant guilty and reset the cause for sentencing.
Two months later, appellant returned to court with new counsel. Through counsel,
appellant asked to withdraw his guilty plea on the ground that there had been no meeting of the
minds regarding the terms of the agreement. The only testimony relevant to the motion to
withdraw the plea was from appellant's original counsel. Counsel testified:
[M]y understanding as to the plea bargain agreement was that we were agreeing
to the State's recommendation of the five years probated period, suspended
sentence, and we were agreeing to the $2500 fine . . . but we were not agreeing
to the 30 days. It was my intention and my understanding that we would have a
hearing on sentencing and introduce evidence favorable to my client's position that
the sentence was too harsh . . . and we didn't feel the 30 days was necessary or
just. And my understanding, and I think my client's understanding also, was that
that was our game plan, was to appear, offer testimony in opposition to the 30-day
jail condition.
Appellant did not testify. After hearing arguments, the court announced its ruling:
I recall this, and it was never -- never any question, any confusion as far as I was
concerned, and I think it was fairly clear from everybody that was talking on the
record here that the plea bargain was two years, probated for five, and a $2500
fine, and that the 30 days in jail was part of a plea bargain. And Mr. Pitts had
argued that he wanted to have a chance for a pre-sentence report to be prepared,
I assume to show how shiny his client was, and then come in and argue to me that
I should probate the 30 days or in some way consider those 30 days to hang over
his head in case he didn't straighten out and fly right or something like that, which
is not unusual for people to come in and argue they want to do weekend CSR,
which is no jail time in Williamson County at all, and that might have been an
argument Mr. Pitts would have made . . . .
. . .
We have lots of alternatives for jail time on sentences like this, and one of the ones
that is used every day is CSR, where they go on weekends and work on CSR
projects and never go to jail, never spend a day in jail. In fact, I would say the
vast majority of these 30-day sentences are served that way. So, there was nothing
unusual about Mr. Pitts saying, "I want to be able to come in here and argue and
talk to you, Judge, about this 30 days in jail." That's not anything unusual at all.
If I thought your client was confused about this plea bargain, I would allow
you to withdraw it. I don't think there's any way there was any confusion on this.
So, I am going to go forward.
After overruling the motion to withdraw the guilty plea, the court assessed punishment and
suspended imposition of sentence. On the State's motion, the court did not impose the thirty days
of jail time as a condition of supervision.
The record supports the court's finding that the plea bargain was accurately stated
in the written plea agreement, with the manner in which appellant would serve the thirty-day jail
time condition subject to argument. This was the court's understanding of the agreement and,
according to his testimony, defense counsel's understanding as well. Counsel testified that he
believed appellant understood the terms of the bargain and there is no evidence otherwise.
Contrary to appellant's argument, the initial confusion regarding the plea bargain does not, as a
matter of law, compel either the conclusion that no agreement existed or that appellant did not
know and understand the terms of the agreement. We must review the record as a whole, not just
those portions that support appellant's argument. Whether reviewed for an abuse of discretion
or de novo, the district court's conclusion that appellant's guilty plea was voluntarily made has
not been shown to be error. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)
(review of mixed questions of law and fact). Issue three is overruled.
Appellant's remaining issues on appeal are that he was denied a hearing on his
motion for new trial (issue one), that he was denied counsel at the new trial hearing (issue two),
that the court did not substantially comply with article 26.13(a) (issues four and five), and that the
court should have permitted him to withdraw his guilty plea (issue six). Appellant's notice of
appeal does not state that he has the district court's permission to raise these issues. See Tex. R.
App. P. 25.2(b)(3)(C). As a consequence, we are without jurisdiction to consider them.
The judgment of conviction is affirmed.
Lee Yeakel, Justice
Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel
Affirmed
Filed: December 23, 1999
Do Not Publish
eement was that we were agreeing
to the State's recommendation of the five years probated pe | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2861761/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-99-00011-CV
Mary Higginbotham, Appellant
v.
Sandra P. Ferguson, Trustee of the Trust Estate of
Madelene Marena Gillespie, Dcd., Appellee
FROM THE COUNTY COURT AT LAW OF COMAL COUNTY
NO. 98 CV 308, HONORABLE FRED RAY CLARK, JUDGE PRESIDING
Mary Higginbotham appeals from a summary judgment rendered against her in a
forcible detainer action filed by Sandra P. Ferguson as trustee of the trust estate of Madelene
Marena Gillespie. In two issues, Higginbotham contends that the county court at law erred in
granting summary judgment in favor of Ferguson: first, because the court lacked jurisdiction to
determine title, and second, because Ferguson failed to prove each element of a forcible detainer
action as a matter of law. We affirm the judgment of the county court at law.
Background
Gillespie purchased real property from Cleburne Caddell on April 10, 1986.
Gillespie allowed her sister, Higginbotham, to occupy the property until Gillespie's death in
February of 1992. By way of executrix deed to the trust estate, the property was conveyed to
Ferguson as trustee on June 22, 1992. On March 31, 1998, Ferguson gave Higginbotham written
notice to vacate the premises. Higginbotham refused to move and continued to occupy the
property.
Ferguson, as executrix to the estate of Madelene Marena Gillespie, brought a
forcible detainer action in justice court against Higginbotham. Higginbotham filed a written
answer and plea to the jurisdiction, alleging that she is an owner of the property and not a mere
tenant. The justice court found that the suit involved issues of title and sustained Higginbotham's
plea to the jurisdiction. Ferguson appealed to county court for a trial de novo.
At county court, Ferguson moved for summary judgment on the ground that no
genuine issues of fact existed in the case. In support of her motion, she filed certified copies of
instruments and deeds evidencing her ownership of the property. Higginbotham filed an amended
plea to the jurisdiction and a response to the motion for summary judgment. In her affidavit in
support of her response, she averred that Gillespie gave the property to her by way of oral gift,
or, alternatively, that she is a fee simple owner of the property pursuant to the express terms of
the trust. Higginbotham, however, never produced any writing evidencing this conveyance. The
trial court overruled Higginbotham's plea to the jurisdiction and granted summary judgment in
favor of Ferguson, ordering "an immediate writ of possession, instructing Mary Higginbotham,
Defendant in this cause, and all persons claiming under her to leave the premises immediately."
This appeal ensued.
Jurisdiction
Before considering the merits of the appeal, we first consider whether the
underlying judgment is void, as alleged by Higginbotham. A forcible detainer proceeding is
intended to be a summary, speedy, and inexpensive remedy to determine who is entitled to
possession of the premises. See Scott v. Hewitt, 90 S.W.2d 816, 818 (Tex. 1936). Justice of the
peace courts and, on appeal, county courts, have jurisdiction of forcible detainer suits. Where
title to the property is directly involved in the suit, the justice and county courts lack jurisdiction.
See Fandey v. Lee, 880 S.W.2d 164, 169 (Tex. App.--El Paso 1994, writ denied). The principal
purpose of a forcible detainer action is to determine who has the right to immediate possession
of the premises. See Haginas v. Malbis Memorial Found., 354 S.W.2d 368, 371 (Tex. 1962).
The only issue is "the right to actual possession," and "the merits of the title shall not be
adjudicated." Tex. R. Civ. P. 746.
Justice courts may adjudicate possession even where issues related to the title of
real property are tangentially or collaterally related to possession. See Falcon v. Ensignia, 976
S.W.2d 336, 338 (Tex. App.--Corpus Christi 1998, no pet.). If the question of title is so integrally
linked to the issue of possession that possession may not be determined without first determining
title, justice and county courts are without jurisdiction to make any determinations regarding title.
See id.; Johnson v. Fellowship Baptist Church, 627 S.W.2d 203, 204 (Tex. App.--Corpus Christi
1981, no writ). District courts have sole jurisdiction to adjudicate title to real property. See Tex.
Gov't Code Ann. § 26.043 (West 1988).
We do not believe a genuine title dispute was ever raised in either court.
Higginbotham referred to an oral agreement between her and Gillespie, but such agreements are
generally unenforceable as a matter of law. See Tex. Bus. & Com. Code Ann. § 26.01 (West
1987) (conveyance of real property must be in writing to be enforceable). (1) Specific evidence of
title dispute is required to call into question a justice court's jurisdiction. See Mitchell v.
Armstrong Capital Corp., 911 S.W.2d 169, 171 (Tex. App.--Houston [1st Dist.] 1995, writ
denied). Higginbotham failed to present specific evidence to raise a genuine title dispute; thus,
the jurisdiction of the court was never at issue. Furthermore, if Higginbotham desires to attack
the validity of the transfer of the property to Ferguson under the trust, she may bring such suit
in the district court for that purpose. See Scott, 90 S.W.2d at 818. This action allowed by law
is not exclusive, but cumulative, of any other remedy that a party may have in the courts of this
state. See id.
We conclude that, because no genuine issue related to title was raised in the courts
below, each had authority to adjudicate the forcible detainer action.
Forcible Detainer
We next consider the merits of the summary judgment rendered in favor of
Ferguson. The standards for review of summary judgments are well established: (1) the movant
must show there is no genuine issue of material fact and that the movant is entitled to a judgment
as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding
summary judgment, the court must take evidence favorable to the nonmovant as true; and (3) the
court must indulge every reasonable inference in favor of the nonmovant and resolve any doubts
in the nonmovant's favor. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49
(Tex. 1985). Because the propriety of a summary judgment is a question of law, we review the
trial court's decision de novo. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994).
To establish her cause of action for forcible detainer, Ferguson had to show: (1)
Higginbotham was a tenant at will or by sufferance; (2) Ferguson had the right to possess the
property; (3) Ferguson made demand for possession; and (4) Higginbotham refused to leave. See
Tex. Prop. Code Ann. § 24.002 (West Supp. 1999). Higginbotham contends that Ferguson did
not establish as a matter of law a landlord-tenant relationship or Ferguson's right to possess the
property. It is undisputed that Ferguson made demand for the property and that Higginbotham
refused to leave.
First, we conclude that Ferguson did establish as a matter of law a right to possess
the property. Ferguson offered a warranty deed from Caddell to Gillespie and an executrix deed
from the decedent's estate to the trust estate as summary judgment proof that she had a right to
possess the property as a matter of law. Although Higginbotham alleged that she purchased the
property from Caddell, she failed to produce a deed evidencing that fact. Higginbotham's
affidavit stating that an oral conveyance took place in which Gillespie "gifted" the property to
Higginbotham is not sufficient evidence to raise a fact issue concerning possession.
Second, we determine that Ferguson established a landlord-tenant relationship as
a matter of law. A tenant at sufferance is one who enters into possession rightfully and after the
end of the tenancy retains possession wrongfully. See 51C C.J.S. Landlord and Tenant, § 175
(1968). As a general rule, a party holding over after the execution of a deed is merely a
permissive tenant whose possession is subservient to the party holding title. See Tex-Wis Co. v.
Johnson, 534 S.W.2d 895, 899 (Tex. 1976); see also Goggins v. Leo, 849 S.W.2d 373, 377 (Tex.
App.--Houston [14th Dist.] 1993, no writ) (tenant at sufferance is merely occupant in naked
possession of property after right to possession has ceased).
Higginbotham had possession of the premises by permission of owner Gillespie.
After Gillespie's death, executrix Ferguson transferred the property to herself as trustee. Thus,
Higginbotham was a tenant at sufferance. Higginbotham's averment that she is a fee simple
owner of the property pursuant to the express terms of the trust is not sufficient to raise a fact
issue as to the existence of a landlord-tenant relationship. The county court properly left the
interpretation of the testamentary trust to the court in which it was filed and is still active, the
Circuit Court of Clay County, Missouri.
Because we find that Ferguson established a right to possession and Higginbotham
was a tenant at sufferance, we hold that Ferguson established a forcible detainer action as a matter
of law. We affirm the trial court's judgment.
Jan P. Patterson, Justice
Before Justices Jones, Kidd and Patterson
Affirmed
Filed: December 9, 1999
Do Not Publish
1. An exception to the statute of frauds exists, making some oral conveyances enforceable.
The elements of the exception are: (1) consideration, (2) possession, and (3) valuable
improvements. See Hooks v. Bridgewater, 229 S.W. 1114, 1116 (Tex. 1921).
the trust, she may bring such suit
in the district court for that purpose. See Scott, 90 S.W.2d at 818. This action allowed by law
is not exclusive, but cumulative, of any other remedy that a party may have in the courts of this
state. See id.
We conclude that, because no genuine issue related to title was raised in the courts
below, each had authority to adjudicate the forcible detainer action.
Forcible Detainer
We next consider the merits of the summary judgment rendered in favor of
Ferguson. The standards for review of summary judgments are well established: (1) the movant
must show there is no genuine issue of material fact and that the movant is entitled to a judgment
as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding
summary judgment, the court must take evidence favorable to the nonmovant as true; and (3) the
court must indulge every reasonable inference in favor of the nonmovant and resolve any doubts
in the nonmovant's favor. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49
(Tex. 1985). Because the propriety of a summary judgment is a question of law, we review the
trial court's decision de novo. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994).
To establish her cause of action for forcible detainer, Ferguson had to show: (1)
Higginbotham was a tenant at will or by sufferance; (2) Ferguson had the right to possess the
property; (3) Ferguson made demand for possession; and (4) Higginbotham refused to leave. See
Tex. Prop. Code Ann. § 24.002 (West Supp. 1999). Higginbotham contends that Ferguson did
not establish as a matter of law a landlord-tenant relationship or Ferguson's right to possess the
property. It is undisputed that Ferguson made demand for the property and that Higginbotham
refused to leave.
First, we conclude that Ferguson did establish as a matter of law a right to possess
the property. Ferguson offered a warranty deed from Caddell to Gillespie and an executrix deed
from the decedent's estate to the trust estate as summary judgment proof that she had a right to
possess the property as a matter of law. Although Higginbotham alleged that she purchased the
property from Caddell, she failed to produce a deed evidencing that fact. Higginbotham's
affidavit stating that an oral conveyance took place in which Gillespie "gifted" the property to
Higginbotham is not sufficient evidence to raise a fact issue concerning possession.
Second, we determine that Ferguson established a landlord-tenant relationship as
a matter of law. A tenant at sufferance is one who enters into possession rightfully and after the
end of the tenancy retains possession wrongfully. See 51C C.J.S. Landlord and Tenant, § 175
(1968). As a general rule, a party holding over after the execution of a deed is merely a
permissive tenant whose possession is subservient to | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1624979/ | 15 So. 3d 1185 (2009)
Barbara FORTIER, Cheron and Harold Baquet, and David Frere, Members of the Congregation of Our Lady of Good Counsel Roman Catholic Church
v.
Most Rev. Alfred HUGHES, S.T.D., Most Rev. Roger P. Morin, Rev. Patrick Collum and the Roman Catholic Archdiocese of New Orleans.
No. 2009-CA-0180.
Court of Appeal of Louisiana, Fourth Circuit.
June 17, 2009.
*1186 Virginia W. Gundlach, Genevieve M. Hartel, Erin N. Beck, Jones Walker Waechter Poitevent Carrere & Denegre, LLP, New Orleans, LA, for Plaintiffs/Appellants.
Richard A. Bordelon, Ralph J. Aucoin, Todd R. Gennardo, Denechaud and Denechaud, L.L.P., New Orleans, LA, for Defendants/Appellees.
(Court composed of Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
DAVID S. GORBATY, Judge.
In this appeal, plaintiffs contend that the trial court erred in granting defendants' exceptions of no right of action and lack of subject matter jurisdiction. For the reasons set forth below, we affirm.
FACTS AND PROCEDURAL HISTORY
On October 14, 2008, Archbishop Alfred C. Hughes signed a canonical decree "suppressing" Our Lady of Good Counsel church parish, effective October 17, 2008. On October 20, 2008, plaintiffs filed a petition for injunctive relief, including a temporary restraining order, seeking to prevent the closure, or "suppression," of Our Lady of Good Counsel parish. The trial court denied the temporary restraining order. Subsequently, on October 28, 2008, the trial court granted Defendants' exceptions of no right of action and lack of subject matter jurisdiction, and denied plaintiffs' request for a preliminary injunction on the same issue. The trial court also denied plaintiffs' request to amend their petition to add a claim for fraud and a claim that they are third party beneficiaries of the corporate charter. Plaintiffs subsequently filed this appeal.
DISCUSSION
Plaintiffs argue that the trial court erred in granting the exception of no right of action. The congregants are members of the non-profit entity known as The Congregation of Our Lady of Good Counsel Roman Catholic Church. The Articles of Incorporation state that The Congregation of Our Lady of Good Counsel was established for the benefit of its membersthat is, those belonging to the corporation, plaintiffs argue. The Articles describe the Archbishop, the Vicar General, and the Pastor as members of the Congregation of Our Lady of Good Counsel Roman Catholic Church because they would not otherwise be members. Article 3 does not define or list the members of the corporation or limit the Congregation's membership to the Archbishop, the Pastor, and the Vicar General, according to plaintiffs.
Peremptory exceptions raising the objection of no right of action are reviewed de novo on appeal as they involve questions of law. Turner v. Law Firm of Wolff & Wolff, 07-1589, p. 2 (La.App. 4 Cir. 6/4/08), 986 So. 2d 889, 891.
*1187 Under La. R.S. 12:208, only members of a corporation may bring an action to challenge an act of the corporation:
(A) Invalidity of an act of a corporation, or conveyance or transfer of movable or immovable property to or by a corporation, by reason of the fact that the corporation was without capacity or power to perform such act or to make or receive such conveyance or transfer may be asserted only:
(1) In an action by a member of the corporation to set aside such act ...
(2) In an action by a member against the corporation to enjoin the performance of any act or transfer of movable or immovable property ...
Article 3 of the Articles of Incorporation contains the only reference to the identity of the members of the corporation. It provides, in pertinent part:
The Most Reverend Archbishop, the Vicar General, and the Pastor of said Congregation shall be and remain members of this corporation and members of the board of directors thereof ...
No other definition of the identity of the members of the corporation appears anywhere else in the document.
Plaintiffs assert that they are members of the corporation "named for the people." Plaintiffs also urge that the opening paragraph of the Articles describing two laymen, Louis Pfister and John Dwyer, as "members of said Congregation" designates that they are members of the corporation.
The words of a contract must be given their generally prevailing meaning. La. C.C. art.2047. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. C.C. art.2046.
Neither the name of the corporation, nor the label plaintiffs give themselves as "members of the congregation" is of any consequence here. The fact that the name of the Corporation contains the word "Congregation" does not serve to override the clear intent of the Articles of Incorporation as set forth in Article 3. In Article 3, the Archbishop, Vicar General and Pastor of the Congregation are clearly named as members of the corporation and members of the board of directors. Pfister and Dwyer are named as members of the board of directors, but are not named as members of the corporation. Plaintiffs' reading of Article 3 would lead to an absurd result, and contradicts the clear language of the document.
Further, plaintiffs' argument that the Archbishop, the Vicar General, and the Pastor are only named members of the corporation because they would not otherwise be members of the corporation is mere speculation and supposition, with no evidence introduced in support of it. It is clear that only the Archbishop, the Vicar General, and the Pastor were named "members of the corporation" in Article 3. No further interpretation is required or allowed by law.
Plaintiffs' argument that Article 2 of the Articles of Incorporation establishes that congregants, or parishioners, are members of the corporation is flawed. Article 2 states that the purpose of the corporation is to "hold and administer property for religious purposes, in that the same may be devoted to religious services for the benefit of those who attend the Roman Catholic Church, belonging to this corporation." The quoted language does not provide that those people who attend the Roman Catholic Church belong to the corporation. Rather, the Roman Catholic Church attended by the parishioners belongs to the corporation. Furthermore, Article 2 does not abrogate the clear language contained in Article 3 naming the members of the corporation.
*1188 Plaintiffs urge that members of a corporation do not have to be identified in the Articles of Incorporation; they can be admitted to the corporation at a subsequent date. However, here, Article 3 states who the members are, and there have been no subsequent amendments to the Articles to include any other members. The affidavit of Barbara Fortier, one of the plaintiffs, attesting that a membership register of the members of the "Congregation" is kept does not establish that these people are members of the corporation. The church registry does not amount to an amendment to the Articles of Incorporation. The fact that plaintiffs are parishioners of a church parish and are registered as such does not elevate them to the position of a corporate member, when they are not identified as such in the Articles of Incorporation.
Making contributions to the Church also does not make plaintiffs members of the corporation. The caselaw cited by plaintiffs is distinguishable. In Palermo, plaintiffs paid a membership fee and annual dues that were provided for in the bylaws of the corporation. Palermo v. Old Tram Hunting Club, 227 So. 2d 644 (La. App. 3 Cir.1969). In the case at bar, the Articles of Incorporation do not provide, explicitly or otherwise, that parishioners who make contributions to the Church are members of the corporation.
The clear and unambiguous language of the Articles of Incorporation identifies only three members of the corporation: the Archbishop, the Vicar General, and the Pastor. The trial court correctly recognized that the plaintiffs are not members of the corporation, and therefore have no right of action. The plaintiffs' assignment of error is without merit.
Plaintiffs assert that the trial court erred in denying their request to amend their petition to add a claim for fraud and a claim that they are third party beneficiaries of the corporate charter. The decision to allow a plaintiff to amend under La. C.C.P. art. 934 is within the discretion of the trial court, and will not be disturbed absent manifest error. Massiha v. Beahm, LAMMICO, and ABC, XXXX-XXXX (La.App. 4 Cir. 8/15/07), 966 So. 2d 87. La. C.C.P. art. 934 does not permit amendments to a petition that change the substance of the original claims. Id.
Plaintiffs originally filed a derivative action. No reference was made in the petition to any cause of action arising out of fraud. Further, plaintiffs now seek damages instead of injunctive relief, which was sought in the initial petition. Additionally, plaintiffs did not allege that they were third party beneficiaries of the corporate charter in their original petition. Plaintiffs' proposed amendments do not amplify or clarify their original claim; they change its substance. As such, we find that the trial court did not abuse its discretion in denying plaintiffs the right to amend.
In light of these rulings, plaintiffs' remaining assignment of error is moot, and we need not address it.
CONCLUSION
Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624970/ | 769 S.W.2d 525 (1989)
Ex parte Nancy Marie BECK.
No. 70169.
Court of Criminal Appeals of Texas, En Banc.
March 22, 1989.
*526 James H. Kreimeyer, Belton, for appellant.
Arthur C. Eads, Dist. Atty., and Sean K. Proctor, Asst. Dist. Atty., Belton, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION
MILLER, Judge.
This is an application for writ of habeas corpus filed pursuant to V.A.C.C.P., Article 11.07, Section 2. Applicant was convicted of voluntary manslaughter after prosecution upon a murder indictment which alleged she caused the death of the complainant by shooting him with "a gun". Upon submission of a special issue, the jury returned a finding that applicant used or exhibited a "deadly weapon" in commission of the offense. Thereafter, the trial judge entered the finding in the judgment of conviction. See V.A.C.C.P., Article 42.01(21).
Applicant now contends she was denied a fair trial by the failure of the indictment to notify her that her use of a deadly weapon would be an issue in the trial. Under Ex parte Patterson, 740 S.W.2d 766 (Tex.Cr.App.1987), accused persons are entitled to notice in some form that the use of a deadly weapon will be a fact issue at the time of prosecution, if the State intends to pursue the entry of a deadly weapon finding pursuant to Article 42.01, supra. See also Article 42.12, Section 3g(a)(2), V.A.C. C.P., [formerly Section 3f(a)(2)]; and Section 15(b).
The State argues that it is "totally illogical for the Applicant to contend that an indictment charging her with causing the death of an individual by shooting him with a gun did not notify her that the gun was an object that `in the manner of its use or intended use is capable of causing death or serious bodily injury.' Texas Penal Code, § 1.07(a)(11)(B)...."
Section 1.07(a)(11)(B), supra, provides: `Deadly weapon' means:
* * * * * *
(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.
We agree with the State. It is apparent that any allegation which avers a death was caused by a named weapon or instrument necessarily includes an allegation that the named weapon or instrument was, "in the manner of its use ...capable of causing" (since it did cause) death.[1] Thus, applicant had sufficient notice that *527 the weapon alleged is a deadly weapon and that her use of a deadly weapon would be an issue in the State's murder prosecution. Thus, the concerns and individual constitutional guarantees elucidated in Ex parte Patterson are satisfied.
We are aware of the language in Ex parte Patterson dealing with the question of notice in the context of the State seeking an affirmative finding of a deadly weapon. As stated in the concurring opinion in Ex parte Patterson, the essence of the cases dealing with analagous notice situations, such as Long v. State, 36 Tex. 6 (1871), dealing with enhanced punishment for repeat offenders, is the giving of notice of "every circumstance constituting a statutory offense which would affect the degree of punishment ...". We have not required that the notice go further and specifically point out that, in the enhancement situations since Long, Subchapter D of Chapter 12 of the Penal Code will be relied on to increase the punishment range to a certain range above that ordinarily prescribed for the indicted crime. We likewise do not deem an analogous requirement necessary in this instance.[2]
Ex parte Patterson notice, consistent with the rationale in Long, remains necessary in cases where there is no allegation of death or serious bodily injury being caused by a weapon, and there is no use of the nomenclature "deadly weapon" in the indictment, but there will be evidence at trial that the defendant used or exhibited a weapon in the commission of the offense. In this instance, where there is no allegation in the indictment which comports with the definition of deadly weapon as set out in § 1.07(a)(11)(B), supra, the defendant is clearly not put on notice that there will be an issue in the case concerning use or exhibition of a deadly weapon.
At this juncture, it is appropriate to comment on Judge Clinton's concurring opinion which concludes that it is Polk v. State, 693 S.W.2d 391 (1985), which is being modified or overruled.[3] Such a notion might lead to some confusion if left unrebutted.
To understand the difference between notice and affirmative finding, it is helpful to mentally compartmentalize the "notice of a deadly weapon issue" apart from the "affirmative finding issue". The concept of notice that there will be a deadly weapon issue in the case is the concern of today's majority opinion and of Ex parte Patterson, supra. This notice concept is totally divorced from the "affirmative finding of a deadly weapon" body of law that has emerged with the Polk, supra, line of cases.
Affirmative finding law emerged as a child of Article 42.12 of the Code of Criminal Procedure. It is solely the result of the insertion of the word "affirmative" in that statute, and has no link to any *528 concept of notice. In fact, nothing in Article 42.12 or in the Polk line of cases prohibits an entry of an affirmative finding without prior notice to the accused. An affirmative finding is just that: a finding that is affirmatively made. This can be accomplished by: (1) A jury's answer to a special issue, or (2) by a finding of "guilty as charged in the indictment". In the latter case, the indictment must also contain an averment of a deadly weapon, or a named deadly weapon per se.
Notice that there will be a deadly weapon issue in the case happens to be given, under our holding today, in the above latter case (i.e. when the indictment contains an averment of deadly weapon or a named deadly weapon per se). But the fact that common wording concerning a deadly weapon in the indictment may satisfy the affirmative finding requirement of Polk and also satisfy the notice requirement of today's holding in no way merges the two separate and distinct bodies of law.
In sum, in the case at bar, the averment in the indictment [causing the death of the complainant by shooting him with a gun] gave appellant notice that the State would attempt to prove that the named gun was used in a manner that caused death and therefore was a deadly weapon. The notice requirement espoused in Patterson, as modified today, is therefore satisfied. By contrast, had the jury not answered a special issue that the gun was a deadly weapon, there would have been no affirmative finding of deadly weapon made, even upon the return of a verdict of "guilty as charged in the indictment". Polk, supra. But since a special issue was so answered, the affirmative finding was properly entered, and appellant does not challenge the entry of an affirmative finding on that ground.
In conclusion, since the applicant here was clearly given notice that the nature of the weapon alleged in the indictment was an issue necessary to litigate in her trial, we deem her to have been given sufficient notice that fact would potentially be used under Article 42.01, supra., or Article 42.12, Section 3g(a)(2), supra. Language in Ex parte Patterson is overruled to the extent of conflict with this holding.
The relief requested is denied.
CLINTON, Judge, concurring.
I feel compelled to comment in defense of the much maligned, and I fear, little understood opinion of the Court in Ex parte Patterson, 740 S.W.2d 766 (Tex.Cr. App.1987).
First, it is Polk v. State, 693 S.W.2d 391 (Tex.Cr.App.1985), which I believe the Court is qualifying today, at least as much as Patterson, albeit sub silentio.
In Polk, supra, the Court rejected a string of cases which had held that a jury verdict of "guilty as charged in" an indictment, alleging that death or serious bodily injury resulted from use of a weapon, "necessarily included" an affirmative finding that a deadly weapon was used. Thus were overruled, inter alia, Ex parte Moser, 602 S.W.2d 530, 533 (Tex.Cr.App.1980) ("The only theory of guilt submitted in the court's charge was that the applicant intentionally or knowingly caused the death of the individual by shooting him with a pistol. The jury found the applicant `guilty of murder as charged in the indictment.' In these circumstances, the verdict necessarily included a finding that the applicant committed murder by shooting the individual with a pistol. Therefore this verdict must amount to an affirmative finding that the applicant used a firearm in the commission of the offense."); and Chavez v. State, 657 S.W.2d 146, 147 (Tex.Cr.App.1983) ("[I]n the present case, the indictment alleges `[defendant caused the death of the deceased by] ... shooting him with a gun.' We hold that this allegation charges murder under V.T.C.A. Penal Code, § 19.02(a)(2) and charges the use of a deadly weapon." (Emphasis added.)). If an allegation that a weapon was used, and that use of that weapon resulted in death, is not such that a jury verdict thereon would "amount to" an affirmative finding, though a verdict upon an indictment alleging a deadly weapon per se, or which expressly labels the weapon used as "deadly," would, it can only be because the former *529 allegation does not constitute a sufficient pleading so that we may know the issue has even been litigated. In other words, our holding in Polk necessarily rejected the conclusion in Chavez, supra, that an indictment such as the one in the instant case actually "charges the use of a deadly weapon." Otherwise, a jury finding of guilt "as alleged in the indictment" would constitute an affirmative finding in this context as well.
Accordingly, in Ex parte Patterson, supra, in which death was allegedly caused "with a knife," we observed:
"Applicant's jury found him guilty of murder `as charged in Count 2 of the indictment.' But in Polk itself we expressly rejected the notion, to be found in, e.g., Chavez v. State, [supra], that an `affirmative' finding could be derived by `necessary implication' from a jury verdict of `guilty as charged' in an indictment pleading facts such as these. That such an indictment will not support an affirmative finding must also mean it does not serve to provide notice that the nature of the weapon will be, in and of itself, a specific issue in the case."
Id., at 777, n. 12. How can it possibly mean anything else?
Without delving into rationale, the holding of Ex parte Patterson, supra, is simply this: In any situation in which, under our opinion in Polk, supra, a jury verdict of "guilty as alleged in the indictment" would not "amount to" an affirmative finding of use of a deadly weapon, such that submission of a special issue on that question would be necessary to authorize entry of an affirmative finding on the judgment, some kind of pleading is required by due course of law. Otherwise, submission of the special issue to the factfinder (or worse, entry on the judgment of the affirmative finding, where punishment is to the court), will be the first formal notice to the accused that the issue was even of consequence in the litigationafter the fact.[1]
To the extent that it backs away from this holding today, the majority has concomitantly rejected its holding in Polk, supra, although not admitting as much. The majority apparently concludes that notice will be found sufficient anytime an indictment contains language "which comports" with the definition of deadly weapon in V.T.C.A. Penal Code, § 1.07(a)(11)(B). I cannot fathom how that can be so when a verdict premised upon that same indictment does not necessarily "amount to" an affirmative finding, under Polk. I must conclude, therefore, that insofar as Polk overruled Moser and Chavez, both supra, Polk is now, in turn, overruled. If this is not the true tenor of the majority opinion, then I fear what was once perceived to be a legal "quagmire" with respect to whether an affirmative finding has been made, 693 S.W.2d at 396, may be transmogrified into a veritable morass with respect to whether an affirmative finding has been pled.
Second, the majority believes it necessary to observe that "the effect" of an affirmative finding of use or exhibition of a deadly weapon is not a part of the pleading which Patterson requires. I agree entirely with this observation, but would not think it necessary.[2] To the extent the opinions *530 today serve to clarify a misunderstanding of the opinions in Patterson on this score, I welcome it.
With these comments I join the judgment of the Court.
CAMPBELL, J., joins in this opinion.
TEAGUE, Judge, dissenting.
The majority opinion treats the contention presented by Nancy Marie Beck, henceforth applicant, as though it was before this Court either on direct appeal or was being presented to this Court through the petition for discretionary review process. However, applicant presents her contention pursuant to Art. 11.07, V.A.C.C.P., this State's postconviction habeas corpus statute, which is invoked when a defendant claims that he was deprived of a fair and impartial trial, or has been deprived of some Federal or State Constitutional right to which he should have received. Given the record of this cause, I do not believe that applicant's contention is a fit and proper subject for this Court to review under its postconviction habeas corpus jurisdiction.
Therefore, I respectfully file this dissenting opinion to the majority's decision to consider applicant's contention that the affirmative finding that a deadly weapon was used or exhibited when she committed the offense of voluntary manslaughter should be deleted from the trial court's judgment because she was not given sufficient notice in the trial court that this was going to occur. I also find that applicant was given sufficient notice, although it is not the kind of notice that I might prefer that a defendant should be given. However, I find that the kind of notice that applicant was given is sufficient to satisfy either the due course of law clause of this State's Constitution or the due process of law clause found in the Fourteenth Amendment to the Federal Constitution, and further find that the lack of such notice about which applicant complains did not deprive her of a fair and impartial trial.
Applicant argues that the affirmative finding that was entered in the trial court's judgment should be deleted from the trial court's judgment for the following reasons: (1) "The State did not plead in the indictment that the applicant used or exhibited a deadly weapon in the commission of the offense", and (2) "The State did not file any special plea that would give the applicant notice that the State intended to seek an affirmative finding."
The record reflects that applicant was convicted by a jury of committing the offense of voluntary manslaughter. The jury also assessed her punishment at ten years' confinement in the Department of Corrections. Thereafter, while represented by the same attorney who represented her at trial, she appealed her cause to the Third Court of Appeals. She did not raise on direct appeal the contention that she raises in this cause. See the Third Court of Appeals' unpublished opinion of Beck v. State, No. 3-84-252-CR, May 22, 1985. Nor did she, through the same attorney who continued to represent her, present the contention *531 that she raises in this cause in the petition for discretionary review that he filed in this Court on her behalf. The petition was refused on June 4, 1986, and motion for rehearing was denied on November 5, 1986. See Beck v. State, Court of Criminal Appeals Number 827-85. Nor does applicant's present and new attorney in this cause allege good cause why her contention was not raised either on direct appeal or in the petition for discretionary review that was refused. See Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977).
I also do not find where applicant has satisfied this Court's stringent requirements that were laid down in Ex parte Maldonado, 688 S.W.2d 114 (Tex.Cr.App. 1985), which holds that if a record of the trial exists, it must be made a part of the postconviction application for the writ of habeas corpus, or the applicant must establish that the error about which he claims occurred at his trial "so infected the trial process as to deny him a fair and impartial trial." (116). The trial court record is not before us, nor does applicant's present counsel assert that the finding deprived her of a fair trial.
Applicant asserts that because her indictment did not allege that the trial judge might later enter in the trial court's judgment the affirmative finding, the finding should be deleted from the trial court's judgment. Although it is true that the indictment is silent that the trial judge might later enter in the judgment the above finding, there is no requirement in our law, not even under Ex parte Patterson, 740 S.W.2d 766 (Tex.Cr.App.1987), that the indictment must contain such an allegation. Our law before today's opinion, under Ex parte Patterson, was simply that the defendant must be given some notice that the trial judge might later enter in the trial court's judgment such a finding. The record of this cause, however, actually shows that applicant and her attorney received notice, although it is not the kind of notice that I prefer should be given.
The record reflects that during the guilt stage of applicant's trial the trial judge, apparently after giving applicant and her very experienced criminal defense trial attorney, who was also a former very well respected district court judge of this State, who also represented her on direct appeal to the Third Court of Appeals and in the petition for discretionary review proceedings before this Court, the opportunity to complain about his, the trial judge, submitting to the jury the special issue that I have attached to this opinion as "Appendix A." They made no objection to the trial judge submitting the issue to the jury, even though there is no statutory authority that gives a trial judge of this State the authority to submit such an issue to the jury. This makes it obvious to me that applicant and her attorney were well aware of, and thus received notice, that the trial judge might later enter in the trial court's judgment the above finding, or at least they were aware or should have been aware that the trial judge might later invoke the provisions of Art. 42.01, V.A.C.C.P., or Art. 42.12, § 3g(a)(2), V.A.C.C.P., formerly Sections 3f(a)(2) and 15(b). See and compare Engle v. Isaac, 456 U.S. 107, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982).
In Polk v. State, 693 S.W.2d 391 (Tex.Cr. App.1985), based upon this Court's decision that it was proper for the trial judge to submit a special issue to the jury on the deadly weapon issue, I concluded in the concurring and dissenting opinion that I filed in that cause that, "If the issue is to be submitted, it should be submitted only at the guilt stage of the trial. The determination by the trier of the facts, whether a deadly weapon was used or exhibited during the commission of the offense by the accused, actually goes to the commission of the offense." (1985). Therefore, given what occurred in this cause, I find that during the guilt stage of the trial applicant received sufficient notice that an affirmative finding might later be entered in the trial court's judgment.
Therefore, this Court should dismiss applicant's cause because it was improvidently ordered filed.
Given what I have stated, I believe to write more would merely pile more obiter *532 dictum on the pile of obiter dictum that the majority has already stacked. Nevertheless, I am compelled to additionally state that I also dissent to the majority opinion's broad and general holding, either express or implied, that if the charging instrument alleges that the accused committed a homicide, and it is also alleged that he did so by or through the use of some solid, gaseous, or liquid substance, and the defendant is found guilty of that offense, or some lesser included offense of that offense, this will be sufficient notice to the accused that the trial judge may later enter in the trial court's judgment an affirmative finding that a deadly weapon was used or exhibited in the commission of the offense for which the accused was convicted, and the defendant need not be given any other kind of notice of this contingency, either formal or informal.
Today, we should praise Patterson for the contributions that he made to our criminal justice system during the short period of time that he lived within that system. However, after today's majority opinion, we should also exclaim from the rooftops: "The great and mighty Patterson is dead! Praise him but no longer recognize him, for Beck killed him and a majority of this Court, after first ordering that he be cremated, buried his ashes! But People, also remember, like the great Phoenix, the great and mighty Patterson may someday arise youthfully alive from his ashes to live another day." Also see the dissenting opinion that I filed in Gilbert v. State, 769 S.W.2d 535, handed down this date.
*533
APPENDIX A
In the event that you find the Defendant guilty, you will next
consider if the Defendant used or exhibited a deadly weapon during the
commission of the offense.
You are instructed that "deadly weapon" means
(a) a firearm or anything manifestly designed,
made or adapted for the purpose of inflicting
death or serious bodily injury.
You are instructed that "Firearm" means any device designed, made
or adapted to expel a projectile through a barrel by using the energy
generated by an explosion or burning substance.
You are instructed that "serious bodily injury" means bodily injury
that creates a substantial risk of death, or that causes death, serious
permanent disfigurement, or protracted loss or impairment of the function
of any bodily member or organ.
Now bearing in mind the foregoing instructions, if you believe from
the evidence beyond a reasonable doubt that the Defendant used or exhibited
a deadly weapon during the commission of the offense of which you found
the Defendant guilty, you will so say by your verdict, but if you have a
reasonable doubt thereof, you will so say by your verdict.
*534
NO. 32,730
THE STATE OF TEXAS IN THE 264 TH DISTRICT COURT
VS. OF
NANCY MARIE BECK BELL COUNTY, TEXAS
VERDICT FORMS
We the Jury, having found the defendant guilty, find beyond a
reasonable doubt that the defendant used or exhibited a deadly weapon
during the commission of the offense of which we found the defendant
guilty.
We the Jury, having found the defendant guilty, do not find or have
a reasonable doubt thereof that the defendant used or exhibited a
deadly weapon during the commission of the offense of which we found the
defendant guilty.
_____________________________
FOREMAN
NOTES
[1] What we say here is no different from reasoning that a person who is charged with capital murder has notice from that charge that he may be found guilty of murder. The latter is necessarily included in the former.
[2] The penal laws are fraught with offenses that have a higher penalty range when an additional fact, which is not necessary to prove the offense, is pled in the charging instrument. Although the additional fact must be pled in the indictment under the Long rationale, the effect of that fact on punishment need not be pled; see for e.g., Sec. 31.03(f), V.A.P.C., (offense is increased to the next higher category of offense if it is shown at trial that the actor was a public servant); Sec. 31.12(h), V.A.P.C., (offense is a Class B misdemeanor unless committed for remuneration, in which event it is a Class A misdemeanor); Sec. 4.03-4.041, Art. 4476-15, V.A.C.S., Controlled Substances Act (offense is aggravated if amount of substance is 28 grams or more); Sec. 4.042(d), Art. 4476-15, V.A.C.S., Controlled Substances Act (minimum penalty jumps from 5 years' imprisonment and a fine not to exceed $50,000 to 10 years' imprisonment and a fine not to exceed $100,000 if amount of substance exceeds 400 grams).
[3] In Polk, supra, this Court stated that verdicts will no longer "amount to" or "necessarily imply" an affirmative finding of use or exhibition of a deadly weapon. In doing so, we relied on the clear legislative intent in holding that an express, not implied, finding of a deadly weapon be made in Art. 42.12, V.A.C.C.P., "affirmative finding" cases. It is apparent from the tremendous number of appellate cases which present the issue of whether a proper "affirmative finding" was in fact made that the bench and bar have a great deal of difficulty effectuating this express finding notion. It is not our place, however, to question the wisdom of a particular requirement of the law as promulgated by our legislature, or to thwart the purpose of such a requirement merely because of its difficulty in practical application.
[1] Thus we exclaimed in Patterson:
"At least where the indictment fails to allege that a weapon was used or exhibited which is alleged to be, or is per se, a deadly weapon,... the accused has no way of knowing that such a finding may even be made until the special issue required in these circumstances by Polk, supra, has been submitted to the jury, or the trial court, acting as factfinder, see Ex Parte Webster, 704 S.W.2d 327 (Tex.Cr.App. 1986), enters the affirmative finding in the judgment!"
740 S.W.2d at 774. (All emphasis is mine throughout unless otherwise noted.)
[2] At the outset the Patterson court identified the issue as "a question expressly left open in Polk v. State, [supra), viz: what notice, if any, must appear in an indictment to support submission of a special issue to the jury as to whether a deadly weapon was used or exhibited during the commission of the alleged offense." Id., at 767. The facts were that the indictment did not allege the knife used was a deadly weapon and a knife is not a deadly weapon per se, but the trial court submitted a special issue to the jury inquiring whether it was a deadly weapon. Defendant asserted on appeal that due process and due course of law require "notice" in the indictment that the State intends to obtain such an affirmative finding "by way of a special issue submitted to the jury." Ibid. The Court ultimately found that in those particular circumstances an accused is entitled to notice, and the State must plead it, but not necessarily in the indictment. Id., at 775-776.
Although in answering the question initially posed we concentrated on the requirement for notice that the State must plead, certain language in the Patterson opinions is said to induce some concern about content of that notice. Yet in note 9, at 775, the opinion of the Court contrasted those situations where "the properly pled allegations of a primary offense, together with allegations of prior offenses, if any, will provide sufficient information from which range of punishment can accurately be gauged, [and] the indictment alleging an offense under terms of V.T.C.A. Penal Code, § 19.03, [will] put the accused on notice that his punishment will invariably be assessed according to the answers given to Article 37.071 special issues," with the situation in Patterson, viz;
"... [F]rom an indictment neither expressly alleging a deadly weapon was used or exhibited, nor alleging use or exhibition of what is a deadly weapon per se, the accused cannot be expected to determine with any degree of certainty whether a special issue will be submitted [.]"
Ergo: A pleading pointedly tendering the issue whether a given thing is a deadly weapon within the meaning of V.T.C.A. Penal Code, 1.07(a)(11), provides notice that, should evidence raise it, the trial court is authorized to submit a special issue to the factfinder. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625334/ | 689 S.W.2d 915 (1985)
Don Carlos McGEE, Appellant,
v.
STATE of Texas, Appellee.
No. C14-83-105-CR.
Court of Appeals of Texas, Houston Fourteenth District.
March 28, 1985.
Rehearing Denied May 16, 1985.
*917 Stephen G. Schulz, Galveston, for appellant.
Miguel Martinez, Dist. Atty., Houston, for appellee.
Before JUNELL, MURPHY and SEARS, JJ.
OPINION
JUNELL, Justice.
Appellant was convicted of delivery of less than 200 grams of a controlled substance, Pentazocine, under Tex.Rev.Civ. Stat.Ann. art. 4476-15 §§ 4.02(d)(4)(U), 4.032(b) (Vernon Supp.1985). His sentence was enhanced by one prior felony conviction, and he was sentenced to twenty years' confinement and fined $5000.00. We affirm the conviction.
A recitation of facts is unnecessary.
In grounds of error one and two, appellant argues that his conviction should be reversed because the state did not allege and the court did not charge that the quantity of Pentazocine he delivered had a "potential for abuse associated with a depressant effect on the central nervous system." In ground of error three, he argues that even if the indictment and charge had contained that language, the evidence was insufficient to establish that he delivered a quantity with a potential for abuse. Appellant derives these arguments from the language of Tex.Rev.Civ.Stat.Ann. art. 4476-15 § 4.02(d)(4)(U) (Vernon Supp.1984):
(d) Penalty Group 3. Penalty Group 3 shall include the following controlled substances:
* * * * * *
(4) Any material, compound, mixture, or preparation which contains any quantity of the following substances having a potential for abuse associated with depressant effect on the central nervous system:
* * * * * *
(U) Pentazocine, its salts, derivatives, or compounds or mixtures thereof;
In the indictment, the State alleged that Appellant:
on or about the ... 13th day of ... February.... A.D. One Thousand Nine Hundred and Eighty-Two, and anterior to the presentment of this indictment in the County of Galveston and State of Texas, did then and there intentionally and knowingly deliver to Eddie Collins a controlled substance, to-wit: Pentazocine in the amount of less than 200 grams by aggregate weight including any adulterants or dilutants by the actual transfer of the said controlled substance from Don Carlos McGee to Eddie Collins,
The charge tracked the language of the indictment.
As the State correctly points out, the term "having a potential for abuse" modifies the word "substance," not the word "quantity." See Sheffield v. State, 623 S.W.2d 403 (Tex.Crim.App.1981); Sheffield v. State, 635 S.W.2d 862 (Tex.App. Tyler 1982, no pet.). Thus, the State was not required to allege or prove, and the court was not required to charge, that appellant delivered a quantity of Pentazocine which had a potential for abuse associated with a depressant effect on the central nervous system. Since the indictment and charge were properly drawn and the testimony of the undercover narcotics officer was sufficient to prove the allegations, grounds of error one, two and three are overruled.
*918 In ground of error four, appellant asserts that he did not receive a fair trial because, during voir dire, the State "convey[ed] to the jury the fact that [he] had a prior felony conviction." Appellant represents to this court that the prosecutor asked each potential juror a question similar to the following:
Could you consider a 20 year sentence that we have been talking about earlier if you found in a proper case that a Defendant had been previously convicted of a felony? Could you consider that punishment if you found he again pushed drugs?
Appellant then attempts to analogize these facts to facts in cases which hold that the admission into evidence of an extraneous offense is incurable, reversible error, see Newman v. State, 485 S.W.2d 576, 578 (Tex.Crim.App.1972), regardless of whether an objection was lodged. See Navajar v. State, 496 S.W.2d 61 (Tex.Crim.App.1973).
We first observe that appellant has misrepresented the facts to this court. Of the thirty-one veniremen, the prosecutor asked twenty of them a general question such as whether they could assess the maximum range of punishment if it were shown that appellant had a previous felony conviction. Although courts have expressed disapproval with such a question to the panel as an entirety, they have held that it is permissible because the answers received aid both parties in the wise use of their peremptory challenges and their challenges for cause. See, e.g., Mathis v. State, 576 S.W.2d 835 (Tex.Crim.App.1979) (en banc). The Mathis court also mentioned without comment that the prosecutor similarly questioned individual veniremen. Id. at 837. As stated in Plair v. State, 102 Tex. Crim. 628, 279 S.W. 267 (1925), it is reversible error to refuse a defendant's request to individually interrogate veniremen. We can find no fault with such a procedure merely because the prosecutor, rather than the defendant, wishes to do so.
The prosecutor asked only two veniremen the question quoted above.
We acknowledge that the prosecutor overstepped the permissible boundaries of voir dire by inquiring of those two veniremen whether they could assess the maximum punishment if they found appellant was "again pushing drugs." However, appellant's attorney made no objection to any of the questions now complained of. His failure to do so constitutes a waiver of the error and preserves nothing for review.
Tex.Code Crim.Proc.Ann. art. 36.01 (Vernon 1981), states that:
A jury being impaneled in any criminal action, the cause shall proceed in the following order:
1. The indictment or information shall be read to the jury by the attorney prosecuting. When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held as provided in Article 37.07.
While our situation does not fall within the confines of art. 36.01 because the prosecutor did not read the enhancement paragraph of the indictment and because appellant had never been convicted of "pushing drugs," we find the reasoning employed in cases interpreting the article enlightening and applicable.
Cox v. State, 422 S.W.2d 929 (Tex.Crim. App.1968), involved a situation governed by art. 36.01. In Cox, the prosecutor read the indictment, including the five enhancement paragraphs, to the jury during opening arguments in the guilt stage of the trial. No objection was made. The court stated:
The only question presented is whether in absence of an objection, a violation of Article 36.01(1), supra, constitutes reversible error. There can be no doubt that the provisions of Article 36.01(1), supra, were designed to serve a salutary purpose and should be strictly complied with by all prosecutors. If the action here complained of had been permitted over objection, reversible error should follow. We cannot agree, however, that *919 in absence of an objection, exception, or a request for an instruction or a mistrial, an accused may successfully raise such question for the first time on the motion for new trial as attempted here. Cf. Kelly v. State, 99 Tex. Crim. 403, 269 S.W. 796.
Id. at 930 (emphasis added). Similarly, in Bell v. State, 504 S.W.2d 498 (Tex.Crim. App.1974), the indictment was read to the jury and the prior conviction was proved during the guilt phase of the trial. Again, no objection was made. Relying on Cox, the court held that although the prosecutor acted improperly, the defendant did not preserve error for review because he did not object. Finally, in Frausto v. State, 642 S.W.2d 506 (Tex.Crim.App.1982), the prosecutor read the enhancement clause to the veniremen during voir dire. The trial court overruled the defendant's objections and the court of criminal appeals reversed the conviction. Read together, these cases hold that the failure of a defendant to object waives the error. Thus, ground of error four is overruled.
Appellant next complains in grounds of error five and six of several remarks the prosecutor made during his closing arguments. At the guilt/innocence stage of the trial, the prosecutor argued:
(1) If we can't get a conviction in that type of situation, we might as well forget trying to get the drug pushers convicted in Galveston.
(2) If you let Don Carlos McGee go, if you say by your verdict not guilty, I want you to think of the effects of this on the community.
(3) You know as well as I do, in your hearts, that Don Carlos McGee is guilty. You know that.... All I am asking you to do is find him guilty of the offense that we have charged him with.
At the punishment stage, the prosecutor argued:
(4) Your verdict is very important. It is extremely important on the effect of people's lives, but not just the dope dealers' lives. You have got an obligation to the rest of society.... You can sentence him now or you can sentence the people out on the street...
(5) The Defense tells us a story that this is not a crime of violence, that there was no violence. I submit that his felony conviction of possession of a prohibited weapon, not just possession of a handgun, but possession of a prohibited weapon is a crime of violence. I submit to you that possession of a handgun that he possessed and was convicted of is a crime of violence and I submit something else: When he is out there selling sets on the street, he is guilty of a crime of violence ...
The permissible areas of jury argument include: (1) summation of evidence; (2) reasonable deductions from the evidence; (3) answers to arguments of opposing counsel; and (4) a plea for law enforcement. Wade v. State, 627 S.W.2d 777 (Tex.App.Waco 1981, no pet.). Appellant argues that the above-mentioned statements made by the state overstepped these bounds. However, no objection to any of these arguments was made either during or after the prosecutor's arguments. The court in Spaulding v. State, 505 S.W.2d 919, 922 (Tex.Crim. App.1974), stated the pertinent standard of review:
The test as to whether an improper argument constitutes reversible error is whether, (1) the argument is manifestly improper, harmful and prejudicial, or (2) it is violative of a statute or, (3) it injects a new and harmful fact into the case.
However, the court of criminal appeals repeatedly has held that, except in cases where the argument complained of was so obviously harmful that its effect could not have been controlled by the action of the trial court in response to a timely and proper objection, a timely objection is necessary to preserve error. In our opinion the argument complained of does not fall within the exception. See, e.g., Carrillo v. State, 566 S.W.2d 902 (Tex.Crim.App.1978) (objection must be timely); Collection Consultants, *920 Inc. v. State, 556 S.W.2d 787 (Tex.Crim. App.1977), appeal dism'd, 436 U.S. 901, 98 S. Ct. 2228, 56 L. Ed. 2d 399 (1978); Clayton v. State, 502 S.W.2d 755 (Tex.Crim.App. 1973) (specific objection preferred, but blanket objection will preserve error); Hall v. State, 492 S.W.2d 512 (Tex.Crim.App. 1973); Joines v. State, 482 S.W.2d 205 (Tex.Crim.App.1972) (objection must be timely); Archer v. State, 474 S.W.2d 484 (Tex.Crim.App.1971). Thus, in our case, appellant's failure to lodge even a single objection constitutes a waiver of the allegedly erroneous argument and preserves nothing for review.
Further, we hold that each of the above-mentioned remarks was within the permissible bounds of jury argument as set forth in Wade v. State, 627 S.W.2d 777 (Tex.App. Waco 1981, no pet.).
Appellant quotes out of context the argument set forth in (1) above. The lead-in remarks and that conclusion are now set forth:
The question is this. The question is, when a police officer testifies and goes out and risks his life on the street and makes a buy from a drug dealer and gets a good look at him as he did here, when he goes up to the locationand remember that Officer Collins, remember his statement that the situation that it was like a Dairy Queen. You knock on what was at that time a sliding wooden window and the window goes up and the Defendant sells him drugs. The Defendant delivers drugs to him and the police officer gets a look at the Defendant and the Defendant is known to reside at that location and when this peace officer gets on the stand and he testifies. I will tell you something. If we can't get a conviction in that type of situation, we might as well forget trying to get the drug pushers convicted in Galveston.
In our opinion, the prosecutor merely summed up the evidence and made a plea for law enforcement. The second and fourth arguments also constituted pleas for law enforcement. Similar arguments have been upheld. For example, in Givens v. State, 554 S.W.2d 199, 200 (Tex.Crim.App. 1977), the prosecutor argued:
And that's why I say your verdict is important. Not only when you talk about rehabilitating an individual and trying to keep him off the streets but to protect the rest of us until he is rehabilitated.
* * * * * *
If he cannot be rehabilitated it will keep him off the streets for as long as possible.
The court held that the inference to be drawn from the prosecutor's argument was that the defendant should be placed where he could be rehabilitated and if he were not rehabilitated, society should be protected by keeping the defendant off the streets as long as possible. In Williams v. State, 607 S.W.2d 577, 581 (Tex.Crim.App.1980), the prosecutor argued:
You're going to say by your verdict you can come down and you can just lope off with the first one if you will just tell people you're sorry
* * * * * *
... If you want to give him his first aggravated robbery free, if you want to give him probation, if you want to put him out on the street
The court again held that this was merely a proper plea for law enforcement. Finally, in Jimenez v. State, 421 S.W.2d 910, 913 (Tex.Crim.App.1967), cert. denied, 391 U.S. 954, 88 S. Ct. 1859, 20 L. Ed. 2d 868 (1968), the prosecutor argued:
This [drugs] is the sort of thing that can even get into the hands of school children and I believe we all know that. I am not saying that that is what this particular
The court held that statement to be a reasonable deduction from the evidence.
Each of the above examples dealt with the effect of either the crime or criminal on the community and all were held not to constitute reversible error. The remarks made in our case are more pointed but still constitute a proper plea for law enforcement. We would hold that the remarks *921 quoted in (1), (2) and (4) did not constitute error.
Appellant complains of the argument set forth in (3) above constituted error because the prosecutor injected his personal opinion of appellant's guilt. However, once again, appellant made no objection to the argument. Thus, he has waived error, if any. Had the court sustained a timely objection, appellant could have requested an instruction to disregard the remark. The court of criminal appeals repeatedly has held that such an instruction would cure the error, if any. See Parr v. State, 575 S.W.2d 522 (Tex.Crim.App.1978); Spaulding v. State, 505 S.W.2d 919 (Tex. Crim.App.1974); Ramos v. State, 419 S.W.2d 359 (Tex.Crim.App.1967); Rancier v. State, 63 S.W.2d 697 (Tex.Crim.App. 1933); Hinton v. State, 65 Tex. Crim. 408, 144 S.W. 617 (1912).
Appellant argues that the final complained of remark, (5) above, constituted error because the prosecutor expressed a "personal opinion as to the gravity of the crime." We can find no authority, and appellant has cited none, which forbids such an expression.
Finally, appellant argues that all of the remarks constituted cumulative error. We disagree and again note that no objections were lodged so as to preserve anything for review. Grounds of error five and six are overruled.
In ground of error seven, appellant argues that his conviction must be reversed because it was based upon the uncorroborated testimony of an accomplice, relying on Tex.Code Crim.Proc.Ann. art. 38.14 (Vernon 1979). Appellant bases his argument on the fact that nobody corroborated the testimony of the undercover narcotics officer who received delivery of the Pentazocine from appellant. In so arguing, appellant is attempting to place a burden on the state which is not statutorily mandated. As the state correctly points out, the Controlled Substances Act requires corroboration only in "offer to sell" cases. Tex.Rev.Civ.Stat.Ann. art. 4476-15 § 1.02(8) (Vernon Supp.1984). See Sheffield v. State, 635 S.W.2d 862, 863 (Tex. App.Tyler 1982, no pet.). This was a "delivery" case. Ground of error seven is overruled.
In appellant's eighth ground of error, he urges that his conviction should be reversed because he did not receive effective assistance of counsel. He bases this conclusion upon unsubstantiated assertions that the attorney appointment system in Galveston County "works to frequently provide attorneys with little or no experience in criminal matters, to assert the rights of defendants," that these attorneys frequently are mere figureheads, and that he was represented by an attorney who had never tried a criminal case.
The applicable standard of review in Texas is discussed in Ex Parte Duffy, 607 S.W.2d 507 (Tex.Crim.App.1980) (en banc). In that case, the court held that a defendant has a right to "reasonably effective assistance of counsel." Id. at 516. We observe that the court of criminal appeals has not yet had the occasion to decide whether the second prong of analysis in Strickland v. Washington, ___ U.S. ___, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), is applicable in Texas.
Strickland outlines a two-pronged analysis: (1) a defendant must show that he did not receive reasonably effective assistance of counsel; and if that prong is shown, (2) a defendant must then show a reasonable probability that, but for counsel's unprofessional errors, the outcome of the trial would have been different.
We hold that appellant has not established that the counsel he received was not reasonably effective. A defendant does not have a right to errorless counsel. Further, we are to scrutinize counsel's representation in a highly deferential manner while attempting to ignore the distorting effects of hindsight. See Ingham v. State, 679 S.W.2d 503 (Tex.Crim.App.1984) (en banc).
We acknowledge that the record reveals several instances in which appellant's *922 attorney could have objected. In each instance, except two, though, the objection properly should have been overruled. The sole instances in which an objection should have been sustained occurred during voir dire. However, as stated in Weathersby v. State, 627 S.W.2d 729 (Tex.Crim.App.1982), an isolated failure to make a certain objection does not constitute ineffective assistance of counsel.
As stated, we do not find ineffective assistance of counsel. Thus, we need not reach the second prong of Strickland. If we did need to reach this issue, we would hold that appellant has not shown that, but for counsel's unprofessional errors, a different outcome was reasonably probable. Ground of error eight is overruled.
The conviction is affirmed.
DISSENTING OPINION
SEARS, Justice, dissenting.
I respectfully dissent. Grounds of error four and five should be sustained and the judgment should be reversed and remanded to the trial court for a new trial. This case involves appointed counsel handling his first defense of a criminal case and gross prosecutorial misconduct. The trial is replete with error from voir dire to Motion for New Trial.
VOIR DIRE
During voir dire of the prospective jurors, the district attorney qualified the panel for an enhanced punishment range as follows:
If it was shown that a prior felony, that a Defendant has been convicted of prior felony and the range of punishment then increased, then, the highest level of the range of punishment, it could expand to 20 years in the penitentiary; and again, a person may have a lot of offenses or may have one or may have done it for free as a favor to a friend, or he may have done for money. There are a lot of different circumstances. Could everyone in that case, if it was shown that a Defendant had a prior felony recorddoes everyone know what a felony is? It is an offense which is punishable by a period of confinement in the penitentiary. If it were shown that a felony had been committed and a Defendant had been previously convicted of a felony and had been sent to the penitentiary, can everybody consider up to 20 years in the Texas Department of Corrections? Would anyone be unable to do that?
There is no indication that any juror had a negative response to the question nor did any juror have any questions to ask in regard to the qualification of punishment on enhancement.
The first section of TEX.CODE CRIM. PROC.ANN. art. 36.01 (Vernon 1981) reads as follows:
The indictment or information shall be read to the jury by the attorney prosecuting. When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held as provided in Article 37.07.
Pursuant to the foregoing art. 36.01 and pursuant to Texas case law, the previous qualification of the jury panel for enhanced punishment was proper. However, the state was not content with merely qualifying the jury, but proceeded to embark on a course of conduct that was calculated and intended to prejudice the jury against this appellant.
The state proceeded to ask twenty-two prospective jurors individual questions concerning whether or not they could consider the full range of punishment of twenty years. This was accomplished without objection by attorney for appellant and without interference and/or instruction from the trial court. Not only did the state repeatedly ask the same question, and hypothetical questions, concerning enhancement of punishment and prior felony convictions in such a manner as to leave no doubt that the accused was a convicted felon, but it sank the harpoon even deeper:
*923 The State: "Could you consider a 20-year sentence that we have been talking about earlier if you found in a proper case that a Defendant had been previously convicted of a felony? Could you consider that punishment if you found he again pushed drugs?" (emphasis added)
And, (to a different juror):
The State: Mrs. Roan, could you consider that full range of punishment including up to 20 years in the Texas Department of Corrections if it was shown that a Defendant previously had been convicted and if you had found he was again pushing drugs? (emphasis added)
The prosecutor not only advised the jury panel that appellant had previously been convicted of a felony, but he lied to the prospective jurors by telling them that the appellant had been convicted of "pushing drugs," a crime for which he had never been convicted. No reasonable person can believe that once a jury has been instructed that the accused was previously convicted for the same crime with which he now stands charged, that it can now try the accused solely for the crime with which he has been charged, and erase from its mind the fact that he was previously convicted of the exact same crime. There is no doubt that the provisions of art. 36.01(1) were designed to serve a salutary purpose and implemented to mandate strict compliance by all prosecutors. Cox v. State, 422 S.W.2d 929 (Tex.Crim.App.1968). The obvious purpose of art. 36.01 is to prevent the extreme prejudice which will inevitably result from advising a jury at the outset of the proceedings that the defendant is a convicted felon. Violation of the mandatory provisions of art. 36.01 is reversible error. Heredia v. State, 508 S.W.2d 629 (Tex.Crim.App.1974).
Justice Teague of the Texas Court of Criminal Appeals in Frausto v. State, 642 S.W.2d 506 (Tex.Crim.App.1982), made some interesting observations of the purpose of the art. 36.01 and the necessity to comply with it. In Frausto, the state also qualified jurors individually on the enhanced range of punishment. However, Frausto differs from this case in that an objection was made and overruled. It is interesting to note that the contents of the enhancement paragraph were communicated to that jury but then dismissed, leaving the impression that the error, if any, was harmless. However, Justice Teague wrote, "We do not consider this fact essential to our decision, as the ruling on appellant's objection was either correct or erroneous at the time it was made, not withstanding subsequent developments." Id. at 508. Both Frausto and Cox stand for the proposition that art. 36.01 is mandatory and a violation will result in reversal if there is an objection and the objection is overruled. The question then remains, is failure to object ineffective assistance of counsel?
While I recognize and acknowledge the cases holding that failure to object to a violation of art. 36.01 waives any error created by the violation, I am also aware that this error could have been avoided by a sua sponte motion by the court to dismiss the jury panel, and then providing the appellant with a clean, untainted jury in this cause. The error was obvious to everyone in the courtroom except appellant's attorney. The court was aware that appellant's attorney was appointed counsel and this was his first criminal trial, and appellant was even aware of the harm caused by failure to object, as he made it grounds for a motion for new trial in a post-trial motion.
In addition to the foregoing, the prosecutor began asking individual jurors what they thought about the drug problem in Galveston County, whether or not they thought drug dealing was a significant problem, and he solicited their views and comments without objection. He conversed with eight members of the jury panel individually, and received the following response from Mr. Robinson:
The State: "What do you think about street drug deals?"
Mr. Robinson: It is pretty bad here in Galveston and basically, the Houston *924 area, too. I have a lot friends in the Coast Guard there and they tell me that there are more drug traffic in and out of Galveston from the Gulf of Mexico.
Further, one panelist was a nurse and she and the prosecutor discussed the nature and effect of the drug appellant was charged with selling. The jury had the benefit of all of this "testimony" without objection from counsel for appellant.
One panelist was the victim of a shoplifting case, a pickpocket case and breaking and entering an automobile. Attorney for appellant asked the following question: "You are prepared to give this person a fair trial and follow the law that the judge instructs you on?" Instead of trying to dismiss this juror for cause, he qualified him better than the prosecution could have done.
The state's attorney went to great lengths to show the panel that he was representing the citizens and the defense counsel was representing the criminal. He then closed his voir dire with the following statement:
I will again simply ask that you give my clients, the citizens of Galveston County, an opportunity to grow up in a society as free of drug dealers as possible and I ask for your consideration for my clients in this case.
Before the jury was selected and impaneled, appellant lost all chance of a fair trial. The following errors are merely cumulative, but nonetheless effective, and designed to deprive appellant of the fundamental right to a fair trial.
TRIAL
The majority opinion chose not to consider the facts of the case in reaching its decision. However, the standard of review for ineffective assistance of counsel is to review the facts of the case to determine if the appellant has been prejudiced by the ineffective assistance of counsel. Strickland v. Washington, ___ U.S. ___, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
The sole complainant against appellant in this case was a Beaumont, Texas, narcotics officer who volunteered his services to the Galveston Police Department. He viewed police file photos of individuals suspected of involvement in drug transactions, and then went into a known drug area of Galveston to attempt to purchase drugs.
He testified that he knocked on a doorway located in an alley at approximately 7:30 p.m. and the lid on a mail slot in the door opened. A voice asked "What do you want?" and the officer responded "two sets." At this time the officer backed off approximately nine feet from the mail slot and positively identified appellant as the person on the other side of the door. The officer had never seen the appellant before this encounter, did not arrest him at the time and has not seen him since the encounter except for the date of trial. He testified that he had made several drug busts prior to the date of this offense, many drug busts after this offense and that he had testified in numerous drug trials before and after the date of this offense. Other than the testimony of other officers regarding receiving the alleged drugs, putting them in a ziplock bag and subsequently turning them over to the chemist for testing, as well as the testimony of the chemist, this was the extent of the state's case against appellant.
The officer testified that the sun set between 5:30 and 6:00 p.m. the day of the offense. He testified that there were no lights on the door, however there was a light in the alley down the street. He further testified that the mail slot in the door was approximately five to six inches high and eight inches long and was approximately at "belly" height from the ground.
Appellant's defense to this charge was alibi. Although appellant did not take the stand, defense witnesses testified that at the time the offense was alleged to have been committed, appellant was in his own apartment located in another part of the city, attending a surprise birthday party given in his honor. Beverly Hemmingway testified that she was at the party from *925 8:00 p.m. to 1:30 a.m., and during that period of time defendant was present and never left the apartment. Joyce Finch testified that she arranged the surprise birthday party and approximately twenty persons attended. She testified that the appellant was at the apartment on the date the offense was alleged to have been committed from 7:00 p.m. to 3:00 a.m. the next morning.
In cross-examining Joyce Finch, the state asked her several questions about her telephone, and in particular whether or not she had a three-way telephone which would permit a conversation between three persons at three different locations. She answered that she did. The state then asked her the following questions:
Q. Isn't it true that you offered Diane Willis money to come and testify that she was with Don Carlos McGee the night of that party?
A. No, I didn't.
Q. Do you know Diane Willis?
A. Yes.
Q. Isn't it true that you offered her money to testify she was there whatever time the offense was supposed to have taken place?
A. No.
Q. What did you talk to her about on the phone when you talked to her on your three-way hookup?
A. I asked her would she go and talk to Mr. Watkins about testifying. I did not offer to pay Diane any money.
Q. Who was on the phone?
A. Me and Don.
Q. You and Don Carlos McGee called up Diane Willis?
A. Yes. He told me and I called Diane.
All of the foregoing questions and answers were made without objection. The questions were highly improper and prejudicial and the damage was caused by the question alone and not the answer. Not only did the state effectively destroy the credibility of the defense witness with facts that were not in evidence in the case, but it also accused appellant of committing a crime with which he has not been charged; to wit: bribery of a witness.
The Court of Criminal Appeals has consistently found that when a prosecutor alleges facts for which no evidence has been adduced at trial, the result is harmful error. While most of the case law deals with statements made in argument as opposed to questions asked of a defense witness, the analogy is apparent. In Daniel v. State, 550 S.W.2d 72 (Tex.Crim.App.1977), the state alleged that a witness could not appear and make identification because she had been shot in pursuit of the defendant. In Thornton v. State, 542 S.W.2d 181 (Tex. Crim.App.1976), the prosecutor alleged that some witnesses were not present because they were at Huntsville serving seven years for the same offense. There are many cases in the area of pornography dealing with this same situation. See Moore v. State, 530 S.W.2d 536 (Tex.Crim. App.1976) (prosecutor's indication of causal connection between dirty movies and sex crimes was reversible error where there was no evidence of such on record).
There is also a line of cases that hold that it is harmful error to label the defendant with conclusions not supported by facts. See Duncantell v. State, 563 S.W.2d 252 (Tex.Crim.App.) (en banc), cert. denied, 439 U.S. 1032, 99 S. Ct. 637, 58 L. Ed. 2d 695 (1978); Washington v. State, 484 S.W.2d 721 (Tex.Crim.App.1972); Howard v. State, 453 S.W.2d 153 (Tex.Crim. App.1970), and others. While these cases also deal with argument as opposed to questioning of witness, it is clear that it is improper to label the accused as something that he is not. Further, the error is compounded by alleging that the facts not in evidence are true.
In Lounder v. State, 46 Tex. Crim. 121, 79 S.W. 552 (1904), the court held that testimony regarding an attempt to improperly influence a witness is not admissible against a defendant in a criminal case unless it is shown that he authorized the attempt. While the conviction was affirmed in Lounder because the crime was *926 so grotesque and the evidence overwhelming, the court nonetheless held that it was error to admit such testimony. Extraneous transactions which constitute offenses alleged to have been committed by the accused can only be admissible upon a showing that the transaction is relevant to a material issue in the case at bar, and that the relevancy value of the evidence outweighs its inflammatory or prejudicial potential. Ruiz v. State, 579 S.W.2d 206 (Tex.Crim.App.1979). However, it is always required that the commission of an extraneous offense be proved and that the accused is shown to be the perpetrator. 23 TEX.JUR.2d Evidence § 195 (1961).
The error committed by the state in the questioning of this witness is generally found in the cross-examination of defense character witnesses. However, the improper cross-examination accused the defendant of having committed a crime with which he was not charged. It is the established general rule of evidence that proof of extraneous transactions or specific acts of misconduct are inadmissible because they are irrelevant to the contested material issues involving the crime for which the accused is on trial. The accused is entitled to be tried on the charges filed and not for some collateral crime of which he has no notice. Jones v. State, 568 S.W.2d 847 (Tex.Crim. App.1978) (en banc). In Murphy v. State, 587 S.W.2d 718 (Tex.Crim.App.1979), the state tried to introduce extraneous offenses to attack the credibility of alibi witnesses. The court held that it was reversible error and stated that the purpose of the evidence was to show the jury that the witnesses were bad people and that the defendant was a criminal generally, and was therefore unworthy of belief.
The cross-examination was also improper in the manner in which the question was framed. The state, by asking the witness "Isn't it true ..." implied that the act had actually been committed. This same type of cross-examination has been held to be reversible error even where no objection has been made. Odum v. State, 533 S.W.2d 1 (Tex.Crim.App.1976). While the state could have asked the witness if she had ever offered a bribe to anyone in relation to testimony in this case, the state cannot frame the question so as to imply that the act has actually been committed. Moffett v. State, 555 S.W.2d 437 (Tex.Crim. App.1977). See also Gaines v. State, 481 S.W.2d 835 (Tex.Crim.App.1972); Brown v. State, 477 S.W.2d 617 (Tex.Crim.App.1972). Even where the question has been framed as "Did you know ..." the questions are improper. Stephens v. State, 660 S.W.2d 85 (Tex.Crim.App.1983) (en banc).
In a recent Court of Criminal Appeals case involving the erroneous admission of evidence, Justice Clinton stated that in order to label a patent error as harmless, it must be demonstrated with clarity, in the context of the case, that the error did not materially contribute to the jury's verdict. Bordelon v. State, 683 S.W.2d 9 (Tex.Crim. App.1985) (en banc). In Bordelon, as in this appeal, the jury's consideration of the inferences arising from the questions propounded to the witnesses may well have been determinative in the verdict of guilty. There can be no doubt that the state's improper cross-examination of the witness was calculated to represent to the jury that there was other evidence available to show that appellant attempted to bribe, or influence another to bribe, a witness in this case. This same approach was attempted in Berryhill v. State, 501 S.W.2d 86 (Tex. Crim.App.1973), wherein the state asked "Isn't it a fact ..." questions in cross-examination of the defendant. The questions were asked and the answers received without objection by defendant's attorney. The state then went further and alluded to those "Isn't it a fact ..." questions and allowed the jury to speculate as to the existence of facts which were not in evidence. The court held that the actions of the state constituted reversible error. The state is permitted to ask a reputation witness if he has heard of specific acts of misconduct, however the sole purpose of this line of questioning is to test the witness' credibility as to the defendant's reputation. See 62 TEX.JUR.2d Witnesses § 196 (1965). However, the state may not *927 ask whether the witness has personal knowledge of the act nor may the question be framed so as to imply that the act has actually been committed. Sisson v. State, 561 S.W.2d 197 (Tex.Crim.App.1978); Moffett v. State, 555 S.W.2d 437 (Tex.Crim. App.1977); Carey v. State, 537 S.W.2d 757 (Tex.Crim.App.1976); Brown v. State, 477 S.W.2d 617 (Tex.Crim.App.1972). Although it has been held that failure to object in some instances waives the error, the question remains whether failure to object is a result of ineffective assistance of counsel. Further, when the error is deliberate, calculated and designed to violate the appellant's right to a fair trial, it deprives him of due process of law and as such constitutes fundamental error, for which objection is not necessary. Anderson v. State, 525 S.W.2d 20 (Tex.Crim.App. 1975).
ARGUMENT
In final argument, the state's prosecutor committed error on several occasions, all without objection by appellant's attorney. To wit:
The question is, when a police officer testifies and goes out and risks his life on the street and makes a buy from a drug dealer ...
If we can't get a conviction in that type of situation, we might as well forget trying to get the drug pushers convicted in Galveston.
If you let Don Carlos McGee go, if you say by your verdict not guilty, I want you to think of the effects of this on the community. You know as well as I do, in your hearts, that Don Carlos McGee is guilty. You know that. You know that.
It is pretty darn easy to sit there and second-guess a police officer from Mr. Watkins' comfortable arm chair there while the police officers are risking their lives. Well, somebody might have seen them ... and somebody might have shot Eddie Collins.
Further, the state in argument pertaining to the testimony of Mrs. Finch, said the following:
She said that yes, she owned a three-way phone and could she explain to a jury what it was. Then I asked the question about bribery about Ms. Willis. Anyway, she testified that the Defendant made a phone call to Diane Willis about this case and that is the reason ...
Not only did the prosecutor improperly discredit the defense witnesses, and allege that appellant committed an extraneous offense, but he also injected matters into the argument that were clearly not presented in evidence. However, what is even more reprehensible is that he invited the jury to speculate on extraneous facts in order to support a conviction. Such tactics are said to be reversible error. See Berryhill, 501 S.W.2d at 87.
The prosecutor also argued facts that were not in evidence when he alluded to police officers risking their lives on the streets making buys from drug dealers, and the fact that someone may have shot Eddie Collins (the state's complaining witness). The law is well-settled that the state may not in argument assert facts that are not in evidence. (See cases cited earlier in this opinion).
It is also well-settled in Texas that the state cannot argue the demands and expectations of the community. Porter v. State, 154 Tex. Crim. 252, 226 S.W.2d 435 (1950); Richardson v. State, 158 Tex. Crim. 536, 257 S.W.2d 308 (1953); Pennington v. State, 171 Tex. Crim. 130, 345 S.W.2d 527 (1961); Cortez v. State, 683 S.W.2d 419 (Tex.Crim.App.1984) (en banc). Further, bare assertions of defendant's guilt are strictly forbidden. Villalobos v. State, 568 S.W.2d 134 (Tex.Crim.App.1978). Even indirect comments on the defendant's guilt have been held improper. See Elizondo v. State, 545 S.W.2d 453 (Tex.Crim.App.1976), and Blackstock v. State, 433 S.W.2d 699 (Tex.Crim.App.1968).
The prosecution can properly argue for society's right to demand enforcement of the law in an appeal to the jury for protection of the community. Perbetsky v. State, 429 S.W.2d 471 (Tex.Crim.App.1968) and *928 Williams v. State, 575 S.W.2d 30 (Tex. Crim.App.1979). However, it is error for the state to argue that the community sentiment "expects, requires, desires, or wishes" a jury to find defendant guilty. Woolly v. State, 93 Tex. Crim. 384, 247 S.W. 865 (1923).
There can be no doubt that the prosecutor's argument violated all of the rules and served no purpose other than to inflame and prejudice the minds of the jurors. Such prosecutorial misconduct requires reversal.
PUNISHMENT
The state presented the following witnesses during the punishment phase of the trial and elicited testimony as follows:
Officer Kitchen (Galveston Police Department) testified regarding fingerprint comparison in the pen packet, and identified appellant as the person previously convicted of the misdemeanor offenses of possession of a prohibited weapon and possession of marijuana, and the felony offense of possession of hydromorphone.
Mr. Hewett (Assistant District Attorney) was the prosecutor who took appellant's plea for the misdemeanor offense of possession of marijuana and for which he received a sentence of one year in the county jail.
Judge Wilson (Galveston County Court Judge)identified appellant as the defendant in the misdemeanor marijuana and prohibited weapon cases.
The following witnesses were presented before the court outside the presence of the jury at the request of appellant's attorney:
Officer Boyle (Galveston Police Department) testified that appellant's reputation in the community was bad. His only knowledge of appellant was in connection with the criminal cases handled or investigated by this officer. Appellant objected to his testimony on the grounds that he was not qualified as a reputation witness and his objection was overruled by the court.
Officer Lopez (Galveston Police Department) testified that appellant's reputation was bad. Appellant objected on the grounds that it was repetitious of Officer Boyle's testimony and the objection was overruled.
Officer Roberts (Galveston Police Department) Like the other officers, Roberts' only knowledge of appellant was through his investigation and/or handling of appellant in prior criminal cases. Appellant objected to his testimony on the grounds that he was unqualified on the issue of appellant's reputation. Objection was overruled.
The jury returned and the following witnesses appeared and testified that appellant's reputation was bad. Again, their only knowledge of appellant was that knowledge gained in the investigation or handling of prior criminal charges against this appellant. No questions were asked of three of the witnesses and no objections were made to their testimony. The witnesses were Mr. Garner, a private attorney who was previously assistant district attorney, who handled the plea on appellant's charge of possession of a prohibited weapon; Officers Boyle, Lopez, and Roberts of the Galveston Police Department, who had testified previously outside the presence of the jury.
The punishment phase of this trial was one of the few instances where the attorney for appellant made objections to inadmissible testimony. However, the court incorrectly overruled the objections. There is an inherent need that reputation testimony come from individuals who have observed over a long period of time an individual's activities in the community in which he resides and works in order to produce a fairly trustworthy indication of reputation. The best application of this rule that I have found is located in Moore v. State, 663 S.W.2d 497, 500 (Tex.App. Dallas 1983, no pet.):
The trustworthiness of reputation testimony stems from the fact that a person is observed in his day to day activities by other members of his community and that these observations are discussed. *929 Over a period of time there is a synthesis of these observations and discussions which results in a conclusion as to the individual's reputation. When reputation is based solely on specific acts, this synthesis is lost, as well as its reliability. When reputation testimony is given by police officers who have investigated an individual's offenses and by victims of an individual act who have spoken only with others who are also victims, it is obvious that the witnesses' conclusions as to the appellant's reputation will be slanted against the individual and will not have the trustworthiness implicit in the exception to the hearsay rule. The conclusion of such witnesses as to the reputation may be vastly different from those who have had the day to day contact with the community envisioned in the traditional exception to the hearsay rule for reputation testimony. What is actually occurring with testimony of this type is that a witness takes the specific acts of the individual and then infers what the reputation of the person would be. In this respect, this evidence could easily be fabricated and, thus, loses its reliability.
The Court of Criminal Appeals has recently affirmed the Moore court's reasoning in Wagner v. State, 686 S.W.2d 140 (Tex. Crim.App., 1985). The Court in Wagner held that "[K]nowledge of specific acts alone as a basis for reputation testimony violates the rationale for admitting such testimony in the first place." The Wagner Court held that the particular reputation testimony complained of was, however, harmless because extraneous incidences were not related to the jury and the state did not include this reputation testimony in his argument. However, appellant was not so fortunate. In this case, the prosecutor commenced his argument as follows:
Ladies and Gentlemen of the jury. Convicted, possession of marijuana. Convicted, possession of marijuana. Convicted, possession of marijuana. Convicted, intentional and knowingly carrying on about his person a handgun. Convicted of intentionally and knowingly carrying on or about his person a handgun. Convicted of possession of a controlled substance, Hydromorphone. Convicted, felony possession of marijuana. Convicted, possession of a prohibited weapon.... That is his legacy. The Defendant could have called any witnesses he wanted to from his community to tell you that he was good person and not to convict him that he had a good reputation.
The state went on to argue, without objection, that the defendant was out on the street "dealing dope like he was running a drive-in grocery store." The state continually argued, "You have got an obligation to the rest of society that that man has shown that he is not fit to live among us because he is a pusher and he lives and he breathes off of the weaknesses of others counting his pieces of silver." Then he wound up his argument with the incredible statement "You can sentence him now or you can sentence the people out on the street and I submit to you that they deserve a chance too."
It is not difficult to understand nor be surprised by the fact that the jury came back with the maximum punishment of twenty years in the Department of Corrections and a $5,000 fine, which is exactly what the prosecutor asked each individual juror for during the voir dire.
Prior to sentencing, attorney for appellant filed a Motion to Quash Indictment and a Motion For Acquittal, or alternatively, Declaration of Mistrial. Both motions were overruled. However, the second motion, for the first time, complained of the error committed during voir dire, the error in the testimony of certain witnesses, the error in the cross-examination of Mrs. Finch and other error to which no trial objections were made.
At time of sentencing, the court asked appellant if he had anything to say, to which he replied:
I don't feel that my motions were in accordance with the law. The reasons I don't feel that way, is because the proper objections by my attorney weren't carried out and taken care of properly.
*930 Also, the fact that he is a non-practicing criminal attorney and that he wasn't aware that objections were to be made at those times. I ask that those objections be made on my behalf and I feel it prejudiced my right for a proper trial and prejudiced my right to appeal.
The court then sentenced appellant to twenty years in the Texas Department of Corrections and assessed a $5,000 fine, and the court denied the state's request that this time be stacked rather than run concurrently with a one-year term appellant was currently serving in the county jail.
MOTION FOR NEW TRIAL
The appellant filed a pro se Motion for New Trial alleging:
(1) A new trial should be granted in that the defendant was unduly prejudiced by the repeated acts of the prosecution in this matter and these acts were so damaging to the defendant that they made it impossible for the jury to return a fair and impartial judgment. (Appellant then cited primarily the same prosecutorial conduct that has been pointed out in this dissent.)
(2) Ineffective assistance of counsel in that appellant's attorney failed to object to the voir dire, opinion testimony by state's witnesses, improper cross-examination of defense witnesses and other areas of the trial wherein attorney for appellant failed to make proper objections. Appellant advises the court that his appointed attorney had no experience in criminal law, was not briefed in criminal procedure, legal questions, legal proceedings, and although he was a practicing attorney this was his first criminal trial (paraphrased).
The court relieved appellant's trial attorney of his obligations and appointed new counsel to represent appellant in his appeal.
At the hearing on appellant's Motion for New Trial, his newly appointed attorney put the appellant on the stand and the testimony pointed out the incompetence of counsel and the prosecutorial misconduct. Appellant complained of the prosecution's voir dire of the jury, that he advised the jury that appellant was previously convicted of pushing drugs and that he questioned each juror individually regarding the punishment range. The appellant then testified as follows:
Q. Did Mr. Watkins (appellant's trial attorney) tell you why he did not object to the repeated asking of this question?
A. He said he thought it was all right, sir.
Q. He said that was all right, sir?
A. Yes.
Q. Mr. McGee, do you have any other specific reasons why you think that your counsel at the trial stage in this particular case may not have rendered you effective assistance presenting your case to the Judge and Jury?
A. Yes, sir, I do. During the trial, there was some numerous incidents that I thought Mr. Watkins should have objected to. During the testimony of Eric Boyle (sic). All Mr. Boyle testified to was when he had heard what was known in the community and nothing that hehe didn't know nothing that he knew for a fact and Mr. Watkins didn't raise any objection. I thought it would have prejudiced and that was error that he didn't make an objection I thought an objection should have been raised. And during the cross examination of Ms. Hemmingway and Ms. Finch, when the District Attorney injected questions, I thought they were inflammatory and I couldn't receive a fair and impartial jury. If they were objected to, I asked why he didn't object.
Appellant then goes on to testify that he also questioned his attorney during the trial about his cross-examination of the state's main witness, and in particular had asked his trial attorney to question the witness concerning the visibility through *931 the slot in the door, the darkness of the night, whether or not anyone took photographs of the area that would show how dark the area was and how small the opening in the door was. He then goes on to discuss the reputation testimony given by the other police officers and stated that he did not believe that it was proper and that objection should have been made. He testified that he had asked his attorney to go out and take pictures of the door and pictures of the area and his attorney refused to do so.
The trial prosecutor, Jim James, took the stand to testify that in his opinion Mr. Watkins (appellant's trial attorney) handled himself very well and his pre-trial preparation was excellent. He further testified that the in-court performance was excellent and that he was impressed generally with his conduct during the trial. In regard to the cross-examination of the defense witnesses, Mr. James testified as follows:
I will also state that as far as any questions of certain defense witnesses that I was told by a witness whose name I believe, was Willis, but I am not certain of the name, that Ms. Finch had a three-way telephone and Ms. Finch offered money and a bribe ...
On cross-examination, Mr. James testified as follows:
Q. Did Ms. Willis at any time indicate to you that Mr. McGee had authorized any of those conversations?
A. It is my understanding that Mr. McGee was on the telephone with Ms. Finch.
Q. What leads you to that understanding, sir?
A. That is what I have been told, that there was a three-way phone conversation but Mr. McGee did not make the offer but he was on the phone and that he certainly did not say, "Oh, baby, don't do that."
He further testified that he did not put Ms. Willis on the stand because "[N]o one was going to believe Ms. Finch, and I thought the timing of the case was perfect." Mr. James also testified that the mysterious Ms. Willis was not subpoenaed.
The parties discussed an affidavit executed by appellant's trial attorney wherein he swore that this was his first criminal trial. However, the affidavit was not made a part of the record; it was discussed with the court at the hearing on the Motion for New Trial but it was not placed into evidence. The record does, however, contain evidence that the trial court was aware that appellant's trial attorney had never previously tried a case in criminal court. When the court denied the Motion for New Trial, it made the following statement: "I also considered that Mr. Watkins did an excellent job, much better than any criminal defense lawyer that comes up here sometimes, and I was very impressed with his ability considering the fact that he didn't try criminal cases."
INEFFECTIVE ASSISTANCE OF COUNSEL
The Sixth Amendment right to counsel has always been held to be "effective assistance of counsel." The definition of effective assistance of counsel, as well as the standard of review of claims of ineffective assistance of counsel, have been the subject of much controversy and change in both state and federal case law. For purposes of this dissent, it is unnecessary to track its history.
The latest federal guideline is expressed in Strickland v. Washington, ___ U.S. ___, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Justice O'Connor, writing for the majority, said that a claim of ineffective assistance of counsel must meet a two-part test. First, appellant must show that the trial counsel's performance was so deficient, and the error so serious, that counsel was not functioning as the "counsel" as guaranteed by the Sixth Amendment. Second, appellant must show that he was prejudiced by the deficient performance of his trial counsel. Id. at 2064. This was further defined as requiring a showing that "counsel's errors were so serious as to deprive defendant of a fair trial, a trial *932 whose result is reliable." It is important to note that the Court went on to say, "[W]e believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case." Strickland, 104 S.Ct. at 2068. The Court goes to great length to show that in making a determination of an ineffectiveness of counsel claim, the court must consider the totality of the evidence. Moreover, "[A] verdict or conclusion only weakly supported by the record is more likely to have been effected by errors than one with overwhelming record support." Id. at 2069.
The Austin Court of Appeals has cited the Strickland decision, and in applying the first part of the two-part test, the court used the "prevailing professional norms" to reach an objective standard of reasonableness, that standard being "whether counsel's assistance was reasonable considering all the circumstances." Hanzelka v. State, 682 S.W.2d 385 (Tex.App.Austin 1984, no pet.). However, that case involved the failure of trial counsel to convey to the accused a plea bargain offer. In Cude v. State, 588 S.W.2d 895 (Tex.Crim.App.1979), the court held that the trial counsel's failure to object to numerous extraneous and prejudicial matters that occurred during the trial, as well as his failure to object to inadmissible evidence, rendered his assistance ineffective and prevented the accused from obtaining a fair trial. An isolated instance of failure to object to inadmissible evidence does not necessarily render counsel ineffective. Ewing v. State, 549 S.W.2d 392 (Tex.Crim.App.1977). However, where there is an almost total failure to object to numerous instances of highly prejudicial argument and testimony, the accused is denied effective assistance of counsel. Callaway v. State, 594 S.W.2d 440 (Tex. Crim.App.1980). Further, where trial counsel repeatedly fails to object to inadmissible evidence and objectionable and prejudicial argument, there is no reasonable basis for concluding that his failure was part of a trial strategy. Id. at 445. Long v. State, 502 S.W.2d 139 (Tex.Crim.App.1973), is another example of repeated improper and highly prejudicial evidence admitted, and jury argument presented, without objection by trial counsel, resulting in reversible error for ineffectiveness of counsel. See also Weathersby v. State, 627 S.W.2d 729 (Tex.Crim.App.1982); Ex Parte Duffy v. State, 607 S.W.2d 507 (Tex.Crim.App.1980) (en banc), for an evaluation of the Texas Court of Criminal Appeals approach to effective assistance of counsel prior to the federal standard established in Strickland.
SUMMATION
There is no question in my mind that the appellant was systematically and purposely deprived of his constitutional right to a fair trial. This is not your run-of-the-mill case involving trial strategy or "isolated" instances of failure to object. This is a classic example of a prosecutor with the bit in his teeth, the wind in his hair and no one with rein in hand.
The primary concept that recurs in all of the evolution of criminal jurisprudence and the Sixth Amendment "right to counsel" is that a fair trial must inevitably be the goal that we seek and the end that we find. The latest Supreme Court opinion in this regard, Strickland, holds that if one views the entire record and finds that the accused has not had a fair trial, then his counsel cannot be said to be "effective."
Accordingly, I would sustain appellant's grounds of error four and five, reverse the trial court's judgment and remand this cause for a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624959/ | 769 S.W.2d 584 (1989)
EL PASO DEVELOPMENT COMPANY and El Paso Natural Gas Company, Appellants,
v.
G. Phil BERRYMAN, Appellee.
No. 13-88-023-CV.
Court of Appeals of Texas, Corpus Christi.
February 28, 1989.
Rehearing Denied April 27, 1989.
Second Motion For Rehearing Denied May 25, 1989.
*586 Harvey F. Cohen, Roger Townsend, Fulbright & Jaworski, Jess Hall, Jr., James W. Paulsen, Liddell, Sapp, Zivley, Hill & LaBoon, Houston, for appellants.
J. Norman Thomas, James R. Harris, Harris, Browning, Jordan & Hyden, Corpus Christi, for appellee.
Before UTTER, KENNEDY and BENAVIDES, JJ.
OPINION
UTTER, Justice.
El Paso Development Company and El Paso Natural Gas Company appeal a judgment rendered in favor of G. Phil Berryman in a usury case. The trial court entered judgment for $15,887,217.71, plus interest and attorney's fees and voided Berryman's note obligations, the deed of trust, and the vendor's lien securing the note. Appellants attack the sufficiency of the evidence to support the jury findings, the awards of pre-judgment and post-judgment interest, the exclusion of jury issues and evidence, the calculation of damages, and the trial court's finding that El Paso Natural Gas Company was the alter ego of El Paso Development Company.
Appellants argue in their first two points of error that the trial court erred in entering judgment for plaintiff based upon the jury's negative answer to special issue No. 5, asking whether both a cash price and a credit price were offered during negotiations because the defense of time price differential was established as a matter of law, or alternatively, such answer was against the great weight and preponderance of the evidence. Appellant further alleges that there was no evidence to support the jury's answer to Special Issues Nos. 1 and 2 wherein the jury found that $2,706,391.00 of the $10 million dollar contract price was interest, or in the alternative, the evidence was factually insufficient to support the jury's answers thereto.
For us to properly analyze appellant's first two points of error, it is necessary that we establish an overview of the general law of usury and the specific defense of time price differential in seller financed real property transactions. Since 1857, Texas has recognized the time price differential defense to a claim for usury. See Shirkey v. Hunt, 18 Texa 883 (1857). In Fisher v. Hoover, 21 S.W. 930 (Tex.Civ. App.1893, no writ), the Texas Court of Civil Appeals dealt for the first time with the question of the application of the defense of time price differential to a claim for usury in a real estate transaction. The court acknowledged that a seller may lawfully have two prices for his property, one for a cash sale and a much larger one for a sale on time; acknowledging the defense of time price differential. The court went on to recognize, however, that if the parties agree on a price for the property and then execute a note which exacts a higher price than the agreed upon price, the difference in the two prices constitutes interest. In Burkitt v. McDonald, 64 S.W. 694 (Tex. Civ.App.1901, no writ), the court again recognized that "a seller may demand one price for cash and another and greater price upon credit and it will not be usury...". Burkitt, 64 S.W. at 695.
We are unable to find any other cases from either the Texas Supreme Court or the courts of appeals until modern times which deal with the application of the time price differential defense to the sale of real property. In a recent case, Mid States Homes, Inc. v. Sullivan, 592 S.W.2d 29 (Tex.Civ.App.Beaumont 1979, writ ref'd n.r.e.), the court was confronted with the issue of the application of the time price differential to a real estate transaction. In Mid States, the court held that the defense was applicable to a real estate transaction.
All parties agree that Tex.Rev.Civ. Stat.Ann. art. 5069-1.01(a) (Vernon 1987) applies to this case. Section 1.01(a) provides:
"Interest" is the compensation allowed by law for the use or forbearance or detention of money; provided however, this term shall not include any time price differential however denominated arising out of a credit sale.
However, no definition of "time price differential" is found in the general usury statute.
*587 The Consumer Credit Code, Tex.Rev.Civ. Stat.Ann. art. 5069-2.01 et seq., also uses the term time price differential in art. 5069-6.02 (Vernon). There is no definition of this term in the Code. However, as stated by the Amarillo Court of Appeals in Commercial Credit Equipment Corp. v. West, 677 S.W.2d 669 (Tex.App.Amarillo 1984, writ ref'd n.r.e.),
By judicial definition, time price differential is the higher of two prices a consumer knowingly pays over a period of time as opposed to immediately paying the full, but lesser cash price. Weis v. Taylor, 613 S.W.2d 332, 334 (Tex.Civ. App.Fort Worth 1981, writ ref'd n.r.e.); Rattan v. Commercial Credit Co., 131 S.W.2d 399 (Tex.Civ.App.Dallas 1939, writ ref'd). As the court stated in Weis: "For the courts to be able to discern time price differential from usury the seller must prove: 1. Two prices were offered; 2. The purchaser was aware of the two offers; and 3. The purchaser knowingly chose the higher `time price.'" Id. at 334. Commercial Credit Equipment, 677 S.W.2d at 675.
We concur in the Amarillo Court's decision and determine that the definition of time price differential and the proof necessary to support the claim under art. 5069-1.01 should be consistent with the definition of time price differential under Article 5069-2.01. El Paso Development Co. v. Berryman, 729 S.W.2d 883 (Tex.App. Corpus Christi 1987, no writ).
With the foregoing definition and burden of proof applicable to this case, we will review the evidence to ascertain whether the evidence sustains appellants' contentions following the well-established test set forth in Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986); Dyson v. Olin Corp., 692 S.W.2d 456 (Tex.1985); Glover v. Texas General Indemnity Co., 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Allied Finance Co. v. Garza, 626 S.W.2d 120 (Tex.App.Corpus Christi 1981, writ ref'd n.r.e.); and Calvert, No Evidence and Insufficient Evidence Points of Error, 38 Tex. L. Rev. 361 (1960).
The record reflects that Berryman was originally contacted by Bill Bates, a real estate agent for El Paso Natural Gas Company, concerning the purchase of a 1,620 acre tract of land located near Portland, Texas. The tract was owned by El Paso Development Company. Berryman met with Robert Montgomery, El Paso Development Company's representative, to discuss the sale. The parties entered into an earnest money contract for the sale of the land on February 2, 1978. The cash price was $7,293,609.00 or $4,500.00 per acre. The contract was subject to Berryman's obtaining financing for the property and he was given 90 days to obtain financing. He was unable to obtain the required financing and received an extension of the contract for an additional 60 days in consideration of the payment of $75,000.00. This extension was to terminate on July 2, 1978. It appeared that Berryman would be unable to obtain the necessary financing by July 2nd. Berryman testified at trial that he had spoken with real estate agent Bates who suggested that El Paso might be amenable to owner financing if El Paso could obtain 26% return on their investment. On May 18, 1978, and May 22, 1978, Berryman wrote Montgomery letters suggesting an amendment to their sale contract, allowing for a credit purchase price of $10,000,000.00. The basic terms suggested were $1,500,000.00 down with a balance of $8,500,000.00 to be repaid at 8% interest over a period of seven years. El Paso Development never responded to his letters of May 18th and 22nd.
In June of 1978 Berryman prepared and forwarded to El Paso Development an addendum to the February 2, 1978 contract which provided that without waiving his right to purchase the property for cash, his offer to purchase the property for a credit price and terms as set forth in his letters of May 18th and 22nd. El Paso Development never acknowledged receipt or accepted the proposed addendum of June, 1978. It is undisputed that all offers to purchase the property on credit prior to the expiration of the extension agreement, which expired on July 2, 1978, were made by Berryman and were not accepted by El Paso Development *588 and up until the time the cash purchase contract expired on July 2, El Paso Development never offered Berryman a credit purchase contract.
On July 2, 1978, the cash contract for $7,293,609.00 expired. A $10,000,000.00 credit contract was signed on July 20, 1978. The credit contract further stated:
This contract is made and entered into subsequent to the expiration and termination of a previous contract for the sale of the above land by and between EL PASO DEVELOPMENT COMPANY and G. PHIL BERRYMAN, TRUSTEE, which Earnest Money Contract provided for a cash sale and was dated February 2, 1978.
The new contract provided that Berryman was now to pay $6,172.84 per acre for the land rather than the initial agreed upon price of $4,500.00 per acre. The evidence was undisputed that the land had not increased in value. Appellants did not contend in the trial court nor do they contend on appeal that the land increased in value during the negotiations. Appellants' sole defense to the allegation of usury was that of time price differential. There was evidence offered, although conflicting, that El Paso Natural Gas Company wanted a rate of return of 26 percent on its investment before taxes. Scott Turner, a CPA who testified for Berryman, said that, in his opinion, appellants were treating the sale price as $7,293,609.00 rather than the $10,000,000.00 amount that appeared on the note and then determining what kind of return they would have on the loan. In addition, the credit contract did not specifically denominate any time price differential as required by art. 5069-1.01(a). The credit contract was the contract upon which the property was closed on August 22, 1978.
After purchasing the property, Berryman failed to pay the first installment of $1,000,000.00 which was due August 22, 1979. He also failed to make the $1,000,000.00 payment due on August 22, 1980. A modification agreement was entered into on September 4, 1980. At this time the interest on the note was raised from 8 percent to 10 percent. In March, 1982, the parties again modified their agreement to increase the interest rate to 12 percent. Berryman paid approximately five million dollars to El Paso Development in early 1983, bringing the total amount paid to El Paso Development to over $9,000,000.00, and executed a new note for $4,572,694.14. Berryman made only one payment on this note.
In August, 1986, Berryman filed a lawsuit against the El Paso companies claiming usury. He contended that the $10 million credit price on the July 20, 1978 note included hidden usurious interest on the original $7,293,609.00 loan. Appellants filed an answer alleging as a defense to the charge of usury that the increase in price in the contract of July 20th represented a time price differential. They did not allege or attempt to prove that the credit contract of July 20th was a new, separate or independent contract. The jury returned a verdict, finding that the $10,000,000.00 sales contract contained interest in the amount of $2,706,391.00, that El Paso Development Company was estopped to assert the statute of limitations and that both a cash price and a credit price were not offered in the negotiations for the purchase of the property.
The test for alleged usury is not concerned with which party might have originated the alleged usurious contract. First State Bank of Bedford v. Miller, 563 S.W.2d 572 (Tex.1978); Tanner Development Co. v. Ferguson, 561 S.W.2d 777 (Tex.1977).
Time price differential is a specific exception to the usury laws. It is an affirmative defense to the charge of usury. The appellants had the burden to prove that the July 20th contract contained a time price differential. As stated by this Court in El Paso Development Co. v. Berryman, 729 S.W.2d 883, 887 (Tex.App.Corpus Christi 1987, no writ):
The requirements of a time price differential are that: (1) two prices were offered: (2) the purchaser was aware of both the cash price and time price; and (3) the purchaser knowingly chose the higher time price."
*589 The evidence in this case reflects that the only credit offers made during the existence of the cash contract were those made by Berryman in his letters of May 20 and 22 and the addendum proposed in June of 1978, none of which were ever acknowledged or accepted by appellants. The credit contract of July 20, 1978, specifically states that the cash contract had terminated. Berryman was offered only one contract at a time, first the cash contract, then the credit contract. He had no alternatives or options at the time he signed the credit contract of July 20th. The cash contract had terminated at the time he was offered the credit contract. There was no way he could have "knowingly chosen the higher time price."
Additionally, Article 5069-1.01(a) provides that:
the term (interest) shall not include any time price differential however denominated arising out of a credit sale.
Thus, if there is a credit sale, it appears that it was the intent of the legislature that the time price differential appear in the credit contract. It is apparent that the reasoning behind the legislature's provision was to avoid the exact situation present in this case. If the time price differential had been denominated in the credit contract between Berryman and El Paso Development, which it was not, then the exception in Section 5069-1.01(a) would have prevailed. However, where the parties agreed that the land value has not increased but that the credit price is more than $2.7 million over the cash price, then there was either a time price differential or usury. The jury determined that under all of the evidence presented that the increase in price was usurious. The evidence was sufficient to support the jury findings. Appellants' first two points of error are overruled.
By appellants' third point, they argue that the trial court reversibly erred in excluding Berryman's 1978 partnership tax return. They argue that the tax return reflected interest on the note of $276,392.14 rather than the $2.7 million Berryman now claims as usurious interest. Appellants claim the tax return was relevant to show that Berryman knew the credit price was a time price differential.
We agree with appellants' authorities which state that tax returns are admissible as party admissions and for impeachment. However, the contract in question called for a $10 million purchase price at 8 percent interest. Appellee made a $1.5 million down payment in 1978. The interest claimed reflects a proper amount for the amount of interest reflected on the note. It seems illogical that Berryman would have reported to the Internal Revenue Service hidden interest paid on the note. We believe the trial court did not err in refusing to admit the evidence. However, if it was in error, it certainly did not amount to a denial of appellants' rights calculated to cause and probably causing the rendition of an improper verdict. Tex.R.App.P. 81(b)(1). We overrule appellants' third point of error.
Appellants argue in their fourth point of error that the trial court erred in refusing to submit their requested issue concerning waiver. The tendered issue read:
Did Mr. Berryman waive his right to assert the usury claim as a result of his conduct in any of the renegotiations of the 1978 promissory note with El Paso Development?
Waiver is an intentional relinquishment of a known right or intentional conduct inconsistent with claiming it. Baker Marine Corp. v. Weatherby Engineering Co., 710 S.W.2d 690, 693 (Tex.App. Corpus Christi 1986, no writ); Burton v. National Bank of Commerce, 679 S.W.2d 115 (Tex.App.Dallas 1984, no writ). It is a voluntary act and implies an election to dispense with something of value or to forego some advantage which might have been demanded or insisted upon. Bluebonnet Oil & Gas Co. v. Panuco Oil Leases, Inc., 323 S.W.2d 334 (Tex.Civ.App.San Antonio 1959, writ ref'd n.r.e.). Waiver generally occurs only when one intentionally relinquishes a known right. Smith v. City of Dallas, 425 S.W.2d 467, 469 (Tex. Civ.App.Dallas 1968, no writ). In the absence of an express renunciation of a *590 known right, a waiver will not be presumed or implied contrary to the intention of the party whose rights would be injuriously affected thereby, unless by his conduct, the opposite party has been misled to his prejudice into an honest belief that such waiver was intended or assented to. Lewis v. Smith, 198 S.W.2d 598 (Tex.Civ.App.Fort Worth 1946, writ dism'd).
The trial court is required to submit questions to the jury which are raised by the pleadings and evidence. Tex.R.Civ.P. 278. Appellants argue that Berryman's eight years delay in filing suit, in the face of his testimony that he believed the interest on the note was high as early as 1978, is some evidence of waiver requiring submission of the issue. Appellants also claim that by executing the several modification and reinstatement agreements expressly affirming that the interest rate did not exceed the maximum allowable rate, Berryman acted inconsistently with an intention to rely on a usury claim. We agree with appellants that this evidence constitutes some evidence of an intention inconsistent with claiming usury. However, it is not evidence that Berryman waived a known right. There was no evidence of an express renunciation of his usury claim. Likewise, there is no evidence that El Paso believed that Berryman was waiving his right to assert a usury claim. We agree that it appears Berryman was willing to forego the claim as long as El Paso was working with him, and decided only to pursue a usury claim when foreclosure was imminent. However, this does not constitute evidence of waiver. We overrule appellants' fourth point of error.
Appellants allege in their fifth and sixth points of error that there was no evidence or factually insufficient evidence to support the jury's findings that they had waived and were estopped to assert the statute of limitations. In the March 30, 1983, reinstatement agreement the parties agreed that the statute of limitations on the note and its installments should be tolled and extended. While the inclusion of the written waiver was surely intended to benefit appellants, it is not limited by its terms to preserve only El Paso's right to enforce the obligations under the original note.
A party may be estopped to assert the defense of limitations if his statement or conduct induced the plaintiff to refrain from commencing his suit within an applicable time period. Walker v. Hanes, 570 S.W.2d 534, 540 (Tex.Civ.App. Corpus Christi 1978, writ ref'd n.r.e.). The contractual agreement is some evidence from which the jury could have found estoppel.
In addition to the agreement, the evidence presented at trial showed that Berryman purchased the raw acreage in question contemplating a major development project. Berryman began experiencing problems developing the property. Montgomery told Berryman that he had experienced similar problems with other purchasers and had been able to work them out with the borrower without foreclosure. Even after the reinstatement agreement in 1983, Berryman testified that he received assurances from Montgomery that they were not going to foreclose even though he was in default. Berryman continued to develop the property. Berryman paid appellants $5,000,000.00 and spent an additional three to four million dollars to construct a golf course on the property.
In 1985, Glacier Park Company, a development company, took over Montgomery's responsibilities. This was a result of Burlington Northern's takeover of El Paso. It was after this takeover that a decision was made to foreclose. During that general period of time, Corpus Christi was designated as a city for the Homeport Project. The reassurances that El Paso was going to continue to work with Berryman and Berryman's reliance on them which was evidenced by his continued development of the project constitutes sufficient evidence of waiver and estoppel to support the jury's verdict. We overrule points five and six.
Appellants claim in their seventh point of error, that the trial court erred in awarding Berryman both the return of his principal payments and the cancellation of the deed of trust as this amounts to a double recovery. Tex.Rev.Civ.Stat.Ann. *591 art. 5069-1.06(1), (2) (Vernon 1987) provides:
(1) Any person who contracts for, charges or receives interest which is greater than the amount authorized by this Subtitle, shall forfeit to the obligor three times the amount of usurious interest contracted for charged or received, such usurious interest being the amount of the total interest contracted for, charged, or received exceeds the amount of interest allowed by law, and reasonable attorney fees fixed by the court except that in no event shall the amount forfeited be less than Two Thousand Dollars or twenty percent of the principal, whichever is the smaller sum; provided, that there shall be no penalty for any usurious interest which results from an accidental and bona fide error.
(2) Any person who contracts for, charges or receives interest which is in excess of double the amount of interest allowed by this Subtitle shall forfeit as an additional penalty, all principal as well as interest and all other charges and shall pay reasonable attorney fees set by the court; provided further that any such person violating the provisions of this section shall be guilty of a misdemeanor and upon conviction thereof shall be punished by fine of not more than One Thousand Dollars. Each contract or transaction in violation of this section shall constitute a separate offense punishable hereunder.
The trial court here ordered the return of principal as authorized by art. 5069-1.06(2) as well as cancellation of the deed of trust. Berryman plead for relief both under the statute and common law.
Appellants claim that the statutory remedy does not provide for cancellation of the deed of trust and the effect of appellee's attempt to recover under common law awards damages twice for the same injury.
In Danziger v. San Jacinto Savings Association, 732 S.W.2d 300, 304 (Tex.1987), the debtors had asserted a common law claim for return of interest paid and cancellation of interest not yet paid as well as various statutory claims. The Supreme Court held that the debtors properly pleaded and preserved their common law claim, entitling them to recover all interest. The Court, in Danziger, allowed for the forfeiture of twice the amount of interest contracted for, charged or received, in addition to a common law action for return of interest paid and cancellation of interest not paid. On the other hand, in Tri-County Farmer's Co-op v. Bendele, 641 S.W.2d 208, 210 (Tex.1982), the Court held that the debtor was not entitled to the dollar amount of his debt as penalty, in addition to cancellation of the debt because this was, in effect, a double forfeiture not contemplated by statute. It appears, however, that in Bendele the debtor sought only statutory remedies under the penalty provisions.
Here, because both common law and statutory causes of action were pleaded, the trial court did not err in its award. We overrule appellants' seventh point of error.
By their eighth point of error, appellants claim that the judgment must be reformed because it awards recovery on the down payment, which is not principal. In the context of forfeiting principal as a statutory penalty for usury, "principal" means that amount upon which interest is charged or earned. Steves Sash & Door Co. v. Ceco Corp., 751 S.W.2d 473, 474 (Tex.1988).
Appellants claim that no interest was charged on the $1,500,000.00 appellee paid as a down payment. The appellees claim that the $10,000,000.00 contract contained hidden interest which was so intertwined that the amount was properly awarded. We agree. Here, the down payment was included in the total amount held to be usurious. The jury found that the $10,000,000.00 contract contained more than 2 million in hidden interest. This is unlike the open account situation discussed in Steves, in which excessive interest was charged on a portion of the account rather than the entire original balance. Id. at 475. Because of the nature of the transaction involved, we find that the down payment was properly considered principal for penalty *592 purposes. We overrule appellants' eighth point of error.
Appellants complain in their ninth point of error that the trial court miscalculated excess interest in determining penalty damages. The trial court awarded the sum of $6,548,772.80 representing twice the amount of excess interest for which El Paso Development Company contracted, charged and or received.[1] The excess interest should have been calculated based upon the leveling principles set forth in Tanner Development Co. v. Ferguson, 561 S.W.2d 777 (Tex.1977). We request the parties submit a recalculation of excess interest, in accordance with this opinion. Otherwise, we will remand to the trial court for purposes of recalculation of excess interest. We sustain appellants' ninth point of error.
By their tenth point of error, appellants argue that they are entitled to judgment for the balance owed under the March 30, 1983, renewal note or alternatively that the trial court erred in failing to subtract the amount of the note from Berryman's recovery. No issues were requested or submitted to the jury on this note. The note was a renewal of the usurious note. We overrule appellants' tenth point of error.
The appellants complain, by their eleventh point of error that the trial court erroneously awarded Berryman "twice the excess interest" charged and prejudgment interest on the principal and interest contracted for, charged and received from July 20, 1978, until judgment. In Steves Sash & Door Co. v. the Ceco Corp., 751 S.W.2d at 476, the Supreme Court held that prejudgment interest is not recoverable on usury penalty damages. Prejudgment interest was not properly recoverable. Appellants' eleventh point of error is sustained and the award of prejudgment interest is deleted from the final award.
By appellants twelfth point of error, appellants state that the trial court erroneously awarded Berryman post judgment interest at 10 percent compounded daily. We agree with appellants that the post judgment interest should have been compounded annually, but we find appellants' complaint is waived. See Tex.Rev.Civ.Stat. Ann. art. 5069-1.05 § 3(a) (Vernon Supp. 1988). The trial court was never apprised of its error and given an opportunity to correct it. This error is not fundamental. See Cox v. Johnson, 638 S.W.2d 867, 868 (Tex.1982). We overrule appellants' twelfth point of error.
By their thirteenth point of error, appellants assert that the trial court erred in rendering a joint and several judgment against El Paso Development and El Paso Natural Gas. The judgment was based on what appellants claim was an erroneous refusal to submit issues to the jury inquiring whether El Paso Development was the alter ego or agent of El Paso Natural Gas. The trial court ruled that it was granting Berryman's motion for directed verdict on alter ego and agency.
In reviewing the propriety of the trial court's action, we look at the evidence most favorably to the party against whom the motion was granted and disregard all contrary evidence and inferences. Henderson v. Travelers Insurance Co., 544 S.W.2d 649, 650 (Tex.1976). The various bases for disregarding the corporate fiction involve questions of fact. Castleberry v. Branscum, 721 S.W.2d 270, 277 (Tex.1986). Except in special circumstances, fact questions should be determined by the jury. Id.
Alter ego applies when there is such unity between the corporation and individual that the separateness of the corporation has ceased and holding only the corporation liable would result in injustice. Castleberry, 721 S.W.2d at 272. We look to the total dealings of the corporation, including the degree to which corporate formalities have been followed, the amount of financial interest, and the ownership and control the individual maintains over the corporation. Id. Generally, a court will *593 not disregard the corporate fiction and hold a corporation liable for the obligations of its subsidiary except where it appears the corporate entity of the subsidiary is being used as a sham to perpetrate a fraud, to avoid liability, to avoid the effect of a statute, or in other exceptional circumstances. Lucas v. Texas Industries, Inc., 696 S.W.2d 372, 374 (Tex.1984).
There was evidence before the trial court that El Paso Development and El Paso National Gas were separate corporations. From 1978 to 1983, El Paso Development and El Paso Natural Gas were sister companies. Separate books and records were kept. El Paso Natural Gas charged El Paso Development for accounting and legal services. All agreements were between Berryman and El Paso Development rather than El Paso Natural Gas. We find that there was some evidence of the absence of separateness, so as to submit the issue to the jury. Appellants' thirteenth point of error is sustained.
Appellee argues by cross point that he is entitled to three times the amount of usurious interest in accordance with the 1979 amendment to Tex.Rev.Civ.Stat.Ann. art. 5069-1.06(1) rather than two times the amount. Plaintiff's petition pleaded and prayed for twice the amount of interest because that was the law at the time his pleadings were filed. In 1979, the legislature substituted "three times" for twice the amount of usurious interest contracted or received if the interest exceeds the amount of interest allowed by law. The application language of the statute states,
This Act shall be applicable to all claims of forfeiture made after the effective date of this Act, but with respect to claims of forfeiture in litigation pending at such effective date, the amount forfeited shall be determined under the provisions of this subsection as originally enacted.
The claim of forfeiture here is governed by the pre 1979 amendment. The trial court was correct in assessing a double rather than triple penalty. Appellee's cross-point is overruled.
The judgment of the trial court is reversed and remanded as to El Paso Natural Gas Company. The award of prejudgment interest is deleted. The parties are ordered to submit a recalculation of excess interest to this Court within thirty days. If this recalculation is not received, the case will be remanded for that purpose. The judgment against El Paso Development Company is otherwise AFFIRMED.
SUPPLEMENTAL OPINION
In our original opinion, we requested the parties to submit a post-opinion recalculation of excess interest. All parties have complied with our request. The parties have reached different conclusions concerning the maximum interest allowed by law.
Appellee's and appellants' calculations differ in that El Paso does not reduce the principal balance in accordance with the contract, while Berryman utilizes the declining balance according to the terms of the contract for his calculation. El Paso calculates the excess interest as $2,866,991.00, while Berryman's excess interest calculation is $3,236,621.00.
The penalties provision of the statute provides that any person who contracts for charges or receives interest which is greater than the amount authorized shall forfeit three times the amount of usurious interest contracted for, charged, or received. See Tex.Rev.Civ.Stat. art. 5069-1.06 (Vernon 1987).[1] We believe that the maximum allowable interest should be calculated based upon terms of the contract at its inception and that appellee's calculation, based upon a declining balance is the correct method of calculation. We hold that the correct amount of excess interest is $3,236,621.00.
We reform the judgment to reflect excess interest at $6,473,242.00, which represents twice the amount of excess interest contracted for, rather than $6,548,772.80, which was the amount calculated by the trial court. See Esparza v. Nolan Wells *594 Communications, Inc., 653 S.W.2d 532 (Tex.App.Austin 1983, no writ).
NOTES
[1] The 1979 amendment to Tex.Rev.Civ.Stat.Ann. art. 5069-1.06(1) substituted "three times" for "twice".
[1] The statute was changed in 1979 to substitute three times for twice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624999/ | 43 N.W.2d 649 (1950)
O'CONNOR
v.
IMMELE.
No. 7159.
Supreme Court of North Dakota.
July 14, 1950.
*651 Paul Campbell, Minot, for plaintiff and appellant.
B. H. Bradford and McGee & McGee, Minot, for defendants and respondents.
BURKE, Judge.
This is an equitable action in the nature of specific performance to enforce an alleged contract to make a will. In her complaint plaintiff alleged that, on the 5th of October 1936, Ella C. Sweeney and Daniel F. Sweeney, husband and wife, executed reciprocal wills in pursuance of an agreement so to do; that such wills were identical in their material provision in that each left to the survivor, his or her entire estate, and bequeathed and devised the residue remaining upon the death of the survivor in equal shares to Mable M. O'Connor and Frances Immele, nieces of Ella C. Sweeney and Daniel F. Sweeney respectively, and provided that in the event of the death of either of the named beneficiaries, their heirs should succeed to their respective interests and take per stirpes and not per capita; that Ella C. Sweeney died on February 17, 1945, leaving an estate of the value of approximately $20,000 to which Daniel F. Sweeney succeeded under the provisions of her reciprocal will of October 5, 1936; that thereafter, on July 11, 1945 Daniel C. Sweeney revoked the reciprocal will made by him and executed a new will in which he designated his niece Frances Immele as the sole beneficiary; that on September 2, 1946, Daniel F. Sweeney died; that on September 4, 1946, Frances Immele presented Daniel F. Sweeney's will of July 11, 1945 for probate in the County Court of Ward County; that upon September 25, 1946, said will was admitted to probate and letters testamentary were issued to Frances Immele; and that Frances Immele qualified as executrix of said will and as such came into possession of all the property of which Daniel F. Sweeney was possessed at the time of his death and that Frances Immele, both as executrix and individually, has refused to recognize the contract of Daniel F. Sweeney to devise and bequeath to the plaintiff one half of the property of which he died possessed. For *652 relief plaintiff demanded that the agreement of Daniel F. Sweeney to make a will as alleged be recognized; that she be decreed to be the owner of one half of the property of which he died possessed; that Frances Immele, both as executrix and individually be declared a trustee of such property and that she, both as executrix and individually, be required to make an accounting of all such property, including income and rents derived therefrom, and that she be required to make conveyance and payments to the plaintiff in accordance with the facts disclosed upon such accounting.
In her answer, the defendant, Frances Immele, admitted that Ella C. Sweeney and Daniel F. Sweeney had made substantially identical wills on October 5, 1936, but denied that such wills were made pursuant to any agreement or contract. For affirmative defenses, she alleged that prior to the commencement of this action the administration of the estate had been concluded and distribution thereof made in accordance with a final decree of distribution; that plaintiff had filed no proof of claim in the course of such administration and that her claim, if any, was barred by the statute of non-claim; that the district court had no jurisdiction of the subject matter of the action for the reason that issues raised by the complaint were matters of probate jurisdiction of which the county court has exclusive original jurisdiction and that plaintiff had had at all times a plain speedy and adequate remedy at law.
The trial court found and concluded that Ella C. Sweeney and Daniel F. Sweeney entered into a contract to dispose of their estates by mutual and reciprocal wills; that after Daniel F. Sweeney had received his deceased wife's estate under her will, he breached his contract by revoking his will and by executing and publishing a new will; that by breaching his contract Daniel F. Sweeney became liable to the plaintiff for the detriment caused by such breach of contract; that under the statute of nonclaim plaintiff was required to present a proper proof of claim for money damages to the executrix of the will of Daniel F. Sweeney; that no such claim was presented within the time allowed by law and that plaintiff's claim is therefore forever barred and that plaintiff was not entitled to specific performance or other equitable relief inasmuch as she had had an adequate remedy at law.
In accordance with these findings and conclusions, judgment was entered in favor of the defendant for the dismissal of the action. Plaintiff has appealed from the judgment and the case is here for a trial de novo upon all the issues.
The first question is whether the reciprocal wills of Ella C. Sweeney and Daniel F. Sweeney were made in accordance with an agreement or contract to make such wills. It is undisputed that the wills in question were made at the same time and place; that at that time the testator and testatrix were each individually possessed of a substantial amount of property; that they had no children of their own, that each had heirs who were not heirs of the other and that the residuary legatees in both wills were the nieces of the testator and testatrix respectively. These facts are exceedingly persuasive of a conclusion that the wills were made in accordance with an agreement. However, since they do not exclude an hypothesis that the reciprocal provisions in the wills may have been due to a coincidental common intent, they are not in themselves sufficient evidence of a contract. The direct evidence of the existence of the contract consisted entirely of parole evidence, the testimony of relatives of the plaintiff, one of whom was an attorney who drafted the wills. All of this evidence is challenged upon the ground that it is incompetent under the "deadman's" statute and in so far as the attorney's testimony is concerned because it disclosed a confidential communication between attorney and client. Neither of these objections is well taken.
The "deadman's" statute, Sec. 31-0103 NDRC 1943, prohibits either party to an action against executors, administrators or next of kin, from testifying against the other "as to any transaction whatever with or statement by the testator or intestate." None of the witnesses who testified to statements made by the testator was a party to the action. It is true, that as relatives of *653 the plaintiff, they may have had a common interest with her in the objective sought but such interest does not raise the bar of the statute. This court has followed the rule that statutes of this character "should not be extended beyond their letter when the effect of such extension will be to add to the list of those whom the act renders incompetent as witnesses." International Shoe Co. v. Hawkinson, 72 N.D. 622, 10 N.W.2d 590, 592; St. John v. Lofland, 5 N.D. 140, 64 N.W. 930; Frink v. Taylor, 59 N.D. 47, 228 N.W. 459; Perry v. Erdelt, 59 N.D. 741, 231 N.W. 888.
We are satisfied also that the testimony of Frank J. O'Connor, the attorney, did not come under the ban against the disclosure of confidential communications made by a client to an attorney in the course of professional employment. The declarations of Ella and Dan Sweeney to which O'Connor testified were made in the presence of each other and were repeated thereafter, when both were present, to other members of the O'Connor family. It is clear from the evidence that the Sweeneys intended that these declarations should not be confidential. The testimony of Frank J. O'Connor was therefore competent. See Page on Wills, Lifetime Ed. Sec. 1751; Allen v. Ross, 199 Wis. 162, 225 N.W. 831, 64 A.L.R. 180; Anno. 64 A.L.R. 201.
The testimony of the witnesses was unequivocal. They all said that Ella and Dan Sweeney had declared the reciprocal wills of October 5, 1936 were made as the result of a mutual agreement.
Defendants contend that other declarations made by the Sweeneys, that they wanted the property to go, in case of the death of either, absolutely to the other, without any trust or encumbrance, are inconsistent with a surrender of the right to revoke such wills and must be construed as a modification of the agreement to that extent. We do not consider the latter declarations inconsistent with the former. The first objective of a husband and wife would be to provide for each other. Neither knew what demands would be made upon them or upon the survivor before the time came for the residuary legatees to take. Each wanted the other to be protected to the full extent of their joint estates. They did not undertake to leave their respective nieces anything. They did undertake to give these nieces, in equal shares, whatever might remain after they both were gone.
The trial judge who saw and heard the witnesses for the plaintiff considered their testimony credible. There is nothing in the record which tends to impeach them. We therefore adopt his finding that the wills were mutual as well as reciprocal.
Defendants also urge that if there was an agreement between the Sweeneys to execute reciprocal wills, it was not solemnized by a memorandum in writing and is therefore invalid under the statute of frauds. The oral agreement was fully performed by Ella Sweeney. She executed her will in accordance therewith. This will remained unrevoked at the time of her death. Daniel Sweeney presented the will for probate and accepted its benefits. In equity this is a sufficient performance to remove the contract from the operation of the statute of frauds. Page on Wills, Lifetime Ed. Sec. 1721; West v. Sims, 153 Kan. 248, 109 P.2d 479; In re Reed's Estate, 125 W.Va. 555, 26 S.E.2d 222; Estate of Doerfer, 100 Colo. 304, 67 P.2d 492; Carmichael v. Carmichael, 72 Mich. 76, 40 N.W. 173, 1 L.R.A. 596, 16 Am. St. Rep. 528; Schramm v. Burkhart, 137 Or. 208, 2 P.2d 14; Tooker v. Vreeland,92 N.J.Eq. 340, 112 A. 665; Schauer v. Schauer, 43 N.M. 209, 89 P.2d 521; Wilson v. Gordon, 73 S.C. 155, 53 S.E. 79; Cummings v. Sherman, 16 Wash.2d 88, 132 P.2d 998; Notten v. Mensing, 3 Cal. 2d 469, 45 P.2d 198.
The next question for consideration concerns the remedy available to the plaintiff. The defendants contend that this action, in the nature of specific performance, will not lie because plaintiff has or had an adequate remedy at law. A decision upon this contention requires an examination into the nature of plaintiff's claim. Her claim rests upon the oral agreement of Ella and Dan Sweeney to make reciprocal wills and upon the acceptance *654 by Dan Sweeney of the benefits of that agreement upon Ella Sweeney's death. It is well settled that the survivor of the parties to such a contract may not, after accepting its benefits, repudiate it. Anno. 169 A.L.R. 48, Mosloski v. Gamble, 191 Minn. 170, 253 N.W. 378; Stewart v. Todd, 190 Iowa 283, 173 N.W. 619, 180 N.W. 146, 20 A.L.R. 1272; Doyle v. Fischer, 183 Wis. 599, 198 N.W. 763, 33 A.L.R. 733. A will made in accordance with such an agreement, however, may be revoked and the revoking will admitted to probate. Fuller v. Nelle, 12 Cal. App. 2d 576, 55 P.2d 1248; In re Higgins' Will, 264 N.Y. 226, 190 N.E. 417; In re Burke's Estate, 66 Or. 252, 134 P. 11; Sumner v. Crane, 155 Mass. 483, 29 N.E. 1151, 15 L.R.A. 447. Despite revocation of the will, the contract to make the will remains effective and it may be enforced. In Doyle v. Fischer, 183 Wis. 599, 606, 198 N.W. 763, 765, 33 A.L.R. 733, it was said: "It should be borne in mind that it is the contract, and not the will, which is irrevocable. The authorities generally hold that the will may be revoked, but that the contract stands, and will be enforced by equity if it be a valid contract, and such enforcement is necessary for the prevention of fraud." See also 69 C.J. 1302, Sec. 2726, 57 Am.Jur. 488, Sec. 718, Anno. 169 A.L.R. 55 et seq.
Plaintiff's claim therefore is one which arises upon contract. It is not, however, a claim against the estate of Dan Sweeney. Rather it is a claim of a property right in that estate which is itself subject to claims against the estate. Fred v. Asbury, 105 Ark. 494, 152 S.W. 155; McCullough v. McCullough, 153 Wash. 625, 280 P. 70; Furman v. Craine, 18 Cal. App. 41, 121 P. 1007; Brickley v. Leonard, 129 Me. 94, 149 A. 833; Oles v. Wilson, 57 Colo. 246, 141 P. 489.
By this action plaintiff is seeking to be placed in the position in which she would have been had Dan Sweeney not revoked the will making her his heir. Section 56-0525, NDRC 1943 provides: "Testamentary dispositions, including devises and bequests to a person on attaining majority, are presumed to vest upon the testator's death."
Thus if the contract to make the will is given effect, plaintiff, upon Dan Sweeney's death, became vested with equitable title to an undivided one-half interest in all of the property of which he died possessed. It is clear that an action to have this title established, to have the executrix and devisee of the testator declared a trustee for the plaintiff to the extent of her interest, and to have the executrix and devisee of the testator directed to make the conveyances and payments necessary to convert plaintiff's equitable title into a legal title, will, if it lies, give plaintiff complete justice. Without mentioning the question of whether an adequate remedy at law was available we have held that rights similar to those of the plaintiff in this case may be enforced by actions in the nature of specific performance. Torgerson v. Hauge, 34 N.D. 646, 159 N.W. 6, 3 A.L.R. 164; Brock v. Noecker, 66 N.D. 567, 267 N.W. 656; Klein v. Klein, 69 N.D. 353, 286 N.W. 898; Heuer v. Kruse, 67 N.D. 552, 274 N.W. 863. In the syllabus in Torgerson v. Hauge, supra, it is said: "Equity will grant relief equivalent to specific performance and fasten a trust upon the property for the benefit of the heirs of the beneficiary under the contract, as against any transferee or devisee."
The fact that a plaintiff may have a remedy at law by an action for damages does not prevent equity from assuming jurisdiction if the equitable remedy is better adapted to render more perfect and complete justice than the remedy at law. 49 Am.Jur. 21, 58 C.J. 853. Of the more complete efficacy of equity in the instant case, we have no doubt. Here, because the contract was not in writing, and because the estate of Dan Sweeney has been distributed in accordance with his subsequent will, made in violation of his agreement, plaintiff's right and ability to recover depend upon removing the contract to will from the operation of the statute of frauds by part performance, and upon impressing a trust upon the distributed property in the hands of the defendant devisee.
Decision of these issues is primarily, if not exclusively, within the jurisdiction of equity. As to the statute of frauds, *655 see Anno. 59 A.L.R. 1305, 49 Am.Jur. 731; 27 C.J. 344, 37 C.J.S., Frauds, Statute of, § 249. As to constructive trusts see 65 C.J. 454, 54 Am.Jur. 169.
What we have said above disposes of the remaining issues in this case. Defendant's contentions that the case is one exclusively within the jurisdiction of the county court and that plaintiff's claim is barred by the statute of non-claim, are disposed of by our conclusion that plaintiff's claim is not a claim against the estate of Dan Sweeney but a claim, arising out of contract, of a property right in that estate. In Muhlhauser v. Becker, 74 N.D. 103, 20 N.W.2d 353, 359 and Goodwin v. Casselman, 51 N.D. 543, 200 N.W. 94, we have stated the rule that "the jurisdiction of the probate court does not extend to the determination of rights in property left by a deceased, where such right does not depend upon heirship or will, but upon contract."
Defendant's claim that plaintiff's right is barred by the distribution of the estate of Dan Sweeney is eliminated by our adherence to the prior decisions of this court in Torgerson v. Hauge, 34 N.D. 646, 159 N.W. 6, 3 A.L.R. 164 and Klein v. Klein, 69 N.D. 353, 286 N.W. 898. In each of these cases, it was held that in equity the beneficiary of a contract to make a will may enforce the contract against devisees as well as against the personal representative of the testator.
The judgment of the district court is therefore reversed and upon remand judgment in favor of the plaintiff is ordered.
NUESSLE, C. J., and BURKE, MORRIS, CHRISTIANSON and GRIMSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624998/ | 769 S.W.2d 77 (1989)
Jerome MALLETT, Respondent/cross-appellant,
v.
STATE of Missouri, Appellant/cross-respondent.
No. 70923.
Supreme Court of Missouri, En Banc.
April 18, 1989.
Rehearing Denied May 16, 1989.
*78 William L. Webster, Atty. Gen., Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, for appellant/cross-respondent.
Donald L. Catlett, Public Defender, Jefferson City, for respondent/cross-appellant.
RENDLEN, Judge.
Movant was convicted of first degree murder for killing Missouri State Highway Patrolman James Froemsdorf and was sentenced to death in the Circuit Court of Schuyler County. His conviction and sentence were affirmed on direct appeal in State v. Mallett, 732 S.W.2d 527 (Mo. banc 1987), where the facts surrounding the crime are detailed. Movant subsequently instituted this Rule 27.26 proceeding, and, after two written amendments by movant's counsel, an evidentiary hearing was held before the Honorable Ronald M. Belt, who was assigned the case as Special Judge. Finding three of movant's claims meritorious, Judge Belt entered an order vacating movant's sentence and requiring that movant be "tried in a venue where there is a possibility of blacks being on the jury." The state appealed the vacation of the sentence and movant cross-appealed, contending *79 the motion court erred in not granting relief on other grounds alleged in his motion. The Court of Appeals, Western District transferred the appeal prior to opinion in compliance with our policy concerning 27.26 proceedings where the underlying conviction resulted in imposition of the death penalty. We reverse.
The state asserts on appeal that the motion court erred in concluding movant's due process and equal protection rights were violated by the trial court's selection of Schuyler County as the venue for movant's trial and in holding that movant did not receive effective assistance of counsel because of counsel's failure to object to a mitigating circumstances instruction that contained an erroneously numbered reference to another instruction. In examining the contentions of error, we bear in mind that appellate review of the motion court's decision in a 27.26 proceeding is limited to a determination of whether its findings, conclusions and judgment are clearly erroneous. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987).
Initially we consider the questions raised concerning the trial court's transfer of venue to Schuyler County. Trooper Froemsdorf was murdered in Perry County, which is situated along the Mississippi River in Southeast Missouri, and movant was originally brought before the court in that county. Movant requested a change of venue, and after his counsel[1] and the state were unable to reach agreement on venue, each party suggested certain counties of their own preference to Judge Murphy during argument on defendant's motion. The state mentioned Texas, Phelps, Clay, and Clinton Counties, while defense counsel named St. Louis City and the Counties of St. Louis, Jackson, and Boone, then added Buchanan and Adair. Movant's counsel expressed a concern that venue be moved to a community where there was a possibility of blacks appearing on the jury because movant is black. After the discussion Judge Murphy stated that he had in mind a county not included on either list and "very far and north of here." He subsequently entered an order transferring venue to Schuyler County, located along the Iowa border and containing, according to 1980 census statistics, 4964 white persons and three black persons. See U.S. Bureau of Census, Census of Population and Housing (1980). Judge Webber, who presided during the trial, testified at the 27.26 hearing he was not aware of any blacks living in Schuyler County at the time of movant's trial.
Movant asserted in his 27.26 motion that he was denied due process by the change of venue, and the motion court agreed, stating "an arbitrary choice of venue without giving the defense an opportunity to be heard; and the fact that the county chosen denies the movant of (sic) any opportunity of members of his own race being on the jury panel; and the fact that the case involves a black man killing a white trooper which has a high possibility for racial prejudice being a factor; violates the due process clause."
A fundamentally fair trial is the basic requirement of due process, and in most cases a showing of identifiable prejudice to the accused is necessary. Estes v. State of Texas, 381 U.S. 532, 85 S. Ct. 1628, 1633, 14 L. Ed. 2d 543 (1965). It is also true that "at times a procedure employed by the State involves such a probability that prejudice will result that it is deemed inherently lacking in due process." Id.; see also Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966). However, in this case we believe the motion court clearly erred in concluding movant did not receive a fundamentally fair trial. The lack of potential black jurors and the issue of racial prejudice were discussed at length in our previous opinion on direct appeal of the conviction. In determining whether movant's death sentence was imposed under the influence of passion, prejudice, or the arbitrary factor of race, we stated that the voir dire examination provided "direct evidence that the jurors were not motivated by racism," and "[l]acking any other evidence, defendant urges that *80 this Court assume racial bias because, while he is black and his victim was white, the county in which he was tried had no black residents, which resulted in a jury panel without blacks." Mallett, 732 S.W. 2d at 539. We declined "to infer racial prejudice on the part of a jury which sentences a black killer of a white victim to death simply because that jury was drawn from a county which has no black residents[,]" and noted "[t]o hold that racial prejudice may be inferred from the absence of members of the defendant's race on the jury would be, in practical effect, to hold that the defendant has a right to members of his own race on the jury. A defendant, however, has no right to a jury of any particular racial composition. Taylor v. Louisiana, 419 U.S. 522, 538, 95 S. Ct. 692, 701, 42 L. Ed. 2d 690 (1975); State v. Blair, 638 S.W.2d 739, 753 (Mo. banc 1982), cert, denied, 459 U.S. 1188, 103 S. Ct. 838, 74 L. Ed. 2d 1030 (1983)." Id. at 540. We further rejected an argument that the trial of a black in a county with no black residents inherently results in a jury motivated by prejudice. Id. The fact that the murder victim was white and defendant was tried in a county without blacks is insufficient to establish identifiable prejudice to the defendant, and we do not find the change of venue procedure utilized here created such a high probability of prejudice that it was inherently lacking in due process; indeed, as previously discussed, all the evidence, including the transcript of voir dire, indicates defendant received a fair trial by an impartial jury.
The third factor mentioned by the motion court was the purported lack of opportunity for the movant to be heard. We note in this regard that movant was able to, and did, express his venue preferences as well as his concern that there be potential black jurors. We see little significance in the fact there was no further hearing after venue was decided. The procedure here followed that specified in Rule 32.03. The motion court clearly erred in finding that movant was denied due process because the venue was changed to Schuyler County.
We next address the state's contention that the motion court erred in concluding movant was denied equal protection by the change of venue. To establish an equal protection violation, a defendant must prove the existence of purposeful discrimination and that the purposeful discrimination had a discriminatory effect on him. McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 1766, 95 L. Ed. 2d 262 (1987). Assuming arguendo that a change of venue from a county with few blacks to one with none has a discriminatory effect on a defendant for purposes of equal protection analysis, we find a complete void of evidence that Judge Murphy's venue decision was animated by a discriminatory purpose. Movant has not shown that Judge Murphy treated him differently than white defendants or that Judge Murphy systematically used the change of venue procedures to ensure that black defendants would be tried by white juries. Nor is there evidence indicating Judge Murphy was aware of the racial composition of Schuyler County; however, if so, "discriminatory purpose implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part `because of,' not merely `in spite of,' its adverse effects upon an identifiable group." Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 99 S. Ct. 2282, 2296, 60 L. Ed. 2d 870 (1979). See also McCleskey, 107 S.Ct. at 1769; Wayte v. United States, 470 U.S. 598, 105 S. Ct. 1524, 1532, 84 L. Ed. 2d 547 (1985).
The motion court relied on Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), in concluding "this court need not find that Judge Murphy acted with a discriminatory purpose, [however,] this court finds that an inference of discriminatory purpose exists." (Emphasis in original.) Batson, of course, involved the use of peremptory strikes by prosecutors to exclude blacks from serving on juries, and the Supreme Court held there that a defendant may make a prima facia case of discrimination by establishing: 1) he is a member of a cognizable racial group and the prosecutor has exercised peremptory *81 challenges to remove from the venire members of the defendant's race; 2) the practice in question permits "those who are of a mind to discriminate to discriminate," and 3) these facts and other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the jury on account of their race. Id. 106 S.Ct. at 1723. Once a prima facia case is established, the prosecution may come forward with a neutral explanation that rebuts the inference. Id. We find Batson of limited usefulness in analyzing movant's claim, which involves procedures for changing venue and has nothing to do with prosecutorial discretion or peremptory challenges.[2] As noted in McCleskey, 107 S.Ct. at 1767, jury selection is one of the "limited contexts" in which statistics have been accepted as proof of intent to discriminate. Of course, we need not decide whether statistical proof may be accepted in the context of change of venue procedures, for movant has presented none.
The "facts" upon which the motion court based its decision were stated as follows: "1) the case involves a cross-racial murder of a state trooper; 2) the decision of Judge Murphy was made without giving counsel an opportunity to object; 3) counties which were of equal convenience to witnesses; equally free of pre-trial publicity; of equal, greater or less distance; and included blacks were tendered by the defense and prosecution; 4) no specific or compelling reason existed to send the case to Schuyler County; 5) there were no blacks living in Schulyer County at the time of trial; 6) movant is a black man; 7) the defense expressed concern that the county chosen include blacks." These "facts" are wholly inadequate under equal protection precedent to establish even an inference of discriminatory purpose when considered in the context of the "totality of relevant facts". Batson, 106 S.Ct. at 1721. As we stated in our previous opinion on direct appeal, "it can be assumed that venue was changed to Schuyler County in order to get the case moved as far north as possible to a county where reports of Trooper Froemsdorf's killing may have received less attention. There is not the slightest suggestion that race was a consideration in the decision to change the venue to Schuyler County." 732 S.W.2d at 540. Based upon the evidence adduced at the 27.26 hearing, we may now add that Judge Murphy selected a neutral site not suggested by either party. Movant's evidence falls short of the "exceptionally clear proof" required before it may be inferred that Judge Murphy abused his discretion, McCleskey, 107 S.Ct. at 1769, and the motion court clearly erred in concluding movant was denied equal protection.[3]
We next address the state's contention that the motion court erred in determining movant was denied effective assistance of counsel by counsel's failure to specifically object to an erroneous reference in Instruction No. 24 (MAI-Cr2d 13.44) to Instruction No. 21 (MAI-Cr2d 13.40) instead of Instruction No. 23 (MAI-Cr2d 13.42). MAI-Cr2d 13.44 submits mitigating circumstances to the jury and provides in part: "If you decide that one or more sufficient aggravating circumstances exist to warrant the imposition of death, as submitted in Instruction No. , you must then determine whether one or more mitigating circumstances exist which outweigh the aggravating *82 circumstance or circumstances so found to exist." The blank is to be filled in with the number given to the instruction patterned after MAI-Cr2d 13.42, which instructs the jury on weighing both statutory and nonstatutory aggravating factors, see MAI-Cr2d 13.44 note on use 2; however, the trial court erroneously inserted the number of the instruction patterned after MAI-Cr2d 13.40, which submits statutory aggravating factors.
In order to prevail on a claim of ineffective assistance of counsel, a defendant must establish that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances and that he was thereby prejudiced. Sanders, 738 S.W.2d at 857 (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). In reviewing such claims, a court need not determine the performance component before examining for prejudice, and if it is easier to dispose of the claim on the ground of lack of sufficient prejudice, the reviewing court is free to do so. Id. To establish prejudice, "the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984). The motion court apparently found prejudice because "movant was deprived of the right to have the Supreme Court review the error[,]" noting, "This Court cannot speculate as to how the Missouri Supreme Court might have ruled the matter." We hold that the motion court clearly erred in determining that movant was prejudiced by counsel's failure to object to the instruction.
Movant argues that the erroneous reference in Instruction No. 24 prevented the jury from weighing the mitigating circumstances against the nonstatutory aggravating circumstances and that several of the mitigating circumstances were submitted to address specific nonstatutory aggravating circumstances. The question is what a reasonable juror could have understood the charge as meaning, and if the specific instruction fails constitutional muster we review the instructions as a whole to see if the entire charge delivered a correct interpretation of the law. California v. Brown, 479 U.S. 538, 107 S. Ct. 837, 839, 93 L. Ed. 2d 934 (1987). Movant's argument is untenable upon a reading of the instructions given the jury. Instruction No. 26 (MAI-Cr2d 13.46) informed the jury that: "You are not compelled to fix death as the punishment even if you do not find the existence of one or more mitigating circumstances sufficient to outweigh the aggravating circumstance or circumstances which you find to exist. You must consider all the circumstances in deciding whether to assess and declare the punishment at death. Whether that is to be your final decision rests with you." If not already clear from Instruction 24, Instruction No. 26 informed the jury they could consider all the circumstances in assessing punishment. Certainly they were not precluded from considering any of the mitigating factors and balancing them against any of the aggravating factors. Furthermore, accepting for the sake of argument movant's contention that the jury would have construed the references in Instruction 24 to "aggravating circumstances" as applying only to statutory aggravating circumstances, the jury would then have believed they must return a verdict of life imprisonment if they found the mitigating circumstances outweighed the statutory aggravating circumstances, making the nonstatutory aggravating circumstances superfluous at that point in the deliberation. MAI-Cr2d 13.44. Such a reading would be beneficial, not prejudicial, to movant. Movant totally failed to establish a reasonable probability that, but for the failure to object, the outcome would have been different, and the motion court clearly erred in determining that he received ineffective assistance of counsel.
We now turn to the issues raised by movant in his cross-appeal. First, movant contends the motion court erred in concluding his claim of denial of due process in *83 connection with the trial judge's failure to recuse was not cognizable in this 27.26 proceeding because it was abandoned on direct appeal. Rule 27.26(b)(3). Alternatively, the motion court found that Judge Webber was not biased against movant. We believe the motion court did not clearly err in rejecting movant's claim. A proceeding under Rule 27.26 is not a substitute for appeal. O'Neal v. State, 486 S.W.2d 206, 207 (Mo.1972). "Trial errors cannot be brought within the scope of Rule 27.26 by simply alleging as a conclusion that they result in an unfair or impartial (sic) trial, or that they affected constitutional rights." Id. at 208. Although movant attempts to cloak his claim in constitutional attire, he alleges only that there was "an appearance of impropriety." Furthermore, the very issue movant now seeks to raise was presented in his motion for new trial. We find no clear error in the motion court's ruling on this point.
Movant also challenges the motion court's categorization of his claim concerning the trial court's failure to grant a change of venue from Schuyler County as trial error. Movant asserted he was denied his right to due process by the trial court's denial of his change of venue motion, which was filed on the first day of trial. The essence of movant's claim was addressed and rejected by this Court on direct appeal. Mallett, 732 S.W.2d at 539-40. "[A] matter decided on direct appeal may not be relitigated in post-conviction relief proceedings even if movant offers a different theory." Schlup v. State, 758 S.W.2d 715, 716 (Mo. banc 1988). The motion court did not clearly err in denying movant relief on this claim.
Movant further contends the motion court erred in ruling the statutory aggravating circumstance of "depravity of mind" was not unconstitutionally vague. On direct appeal we found sufficient evidence to support the jury's finding the murder outrageously or wantonly vile, horrible, or inhuman in that it involved depravity of mind. Mallett, 732 S.W.2d at 542. The evidence indicated the victim had been subjected to serious physical abuse and that movant's actions were in callous disregard for the sanctity of human life. State v. Griffin, 756 S.W.2d 475, 489-90 (Mo. banc 1988). The motion court did not err in ruling the aggravating circumstance of "depravity of mind" was not unconstitutionally vague in this context. Jones v. State, 767 S.W.2d 41 at 45 (Mo. banc 1989).
Finally, we address the purported failure of the motion court to rule on movant's claim of ineffective appellate counsel in connection with counsel's decision not to advance his claim concerning the trial court's failure to strike venireman Karen Long for cause.[4] Although the motion court specifically mentioned the claim regarding juror Long, the ruling on that claim is not stated with particularity; however, we hold the findings and conclusions indicate the motion court's rejection of that claim and are sufficient for appellate review.[5] The standard for reviewing a claim of ineffective appellate counsel is essentially the same as that employed with trial counsel; movant is expected to show both a breach of duty and resulting prejudice. Blackmon v. White, 825 F.2d 1263, 1265 (8th Cir.1987). There is "no duty to raise every possible issue asserted in the motion *84 for new trial on appeal[,]" Camillo v. State, 757 S.W.2d 234, 241 (Mo.App.1988), and the motion court noted that appellate counsel has no duty to present non-frivolous issues where appellate counsel strategically decides to "winnow out" arguments in favor of other arguments, citing Jones v. Barnes, 463 U.S. 745, 103 S. Ct. 3308, 3312-13, 77 L. Ed. 2d 987 (1983). The court stated: "In light of the fourteen issues presented by appellate counsel on direct appeal, this appears to be exactly what appellate counsel was doing." Despite counsel's decision to select and present the strongest contentions of error, the appellate brief submitted exceeded this Court's 100-page limitation, but was nonetheless accepted and considered. The motion court concluded with regard to the issues movant claimed should have been briefed, "counsel testified that she considered raising each one of them, but declined to do so. She considered those issues weaker than the issues she actually raised on direct appeal." We have examined the transcript of voir dire, as well as counsel's testimony at the 27.26 hearing, and find that appellate counsel did not breach her duty to movant.
For the reasons stated in this opinion, the motion court's order vacating movant's sentence is reversed and his 27.26 motion is overruled.
BILLINGS, C.J., HIGGINS, and COVINGTON, JJ., and MAUS, Special Judge, concur.
BLACKMAR, J., concurs in separate opinion filed.
WELLIVER, J., dissents in separate opinion filed.
ROBERTSON, J., not sitting.
BLACKMAR, Judge, concurring.
I adhere to the views expressed in my dissenting opinion in State v. Mallett, 732 S.W.2d 527, 543 (Mo. banc 1987), and I agree with the conclusion of the court below that the case should have been sent elsewhere for trial when counsel advised the trial judge of the situation in Schuyler County.
The point about venue, however, was ruled adversely to the movant on the initial appeal and constitutes the law of the case, by which I am bound. I see no merit in any of the other grounds urged for upsetting the conviction, and so am obliged to concur in the judgment of reversal.
WELLIVER, Judge, dissenting.
I respectfully dissent, as I did in the original review of this case. State v. Mallett, 732 S.W.2d 527, 545 (Mo. banc 1982). I agree with the conclusion of the court below that the case should have been sent for trial elsewhere when trial counsel informed the trial judge of the situation in Schuyler County.
NOTES
[1] Movant was represented at trial by Public Defenders Kenny Hulshof, Gary Robbins, and Mary-Louise Moran. We will refer simply to "counsel."
[2] The present claim, based upon a single action by the decisionmaker, would be more nearly analogous to a Batson claim involving the use of one peremptory strike by the prosecutor, a situation in which a Batson argument would be unlikely to prevail. But even in such a case the analogy is weakened by the fact the prosecutor as an advocate seeks all legitimate advantage for his cause, in contrast to the trial judge who in response to the defendant's motion for change of venue is not called upon to make a partisan determination and has no stake in the outcome.
[3] Because we have determined that movant failed to make a prima facia case of purposeful discrimination, we need not decide whether the affidavit of Judge Murphy, which the state sought to introduce after entry of the order vacating the sentence, may be considered. That affidavit is contained in the legal file at pages 69-72, and it not only corroborates the existence of the non-racial factors previously mentioned and apparent from the record, but indicates other legitimate considerations as well. Had movant established a prima facia case, Judge Murphy's affidavit would have been extremely forceful rebuttal evidence.
[4] It is of interest that movant and his trial counsel chose not to utilize a peremptory strike to remove Ms. Long from the jury.
[5] Generally claims of ineffective assistance of appellate counsel are not cognizable in 27.26 proceedings, but are more appropriately presented to the appellate court in the form of a motion to recall mandate. Hemphill v. State, 566 S.W.2d 200, 207-8 (Mo. banc 1978). However, "where an appellate court retains no unique knowledge (emphasis in original) necessary to the disposition of a claim of ineffective assistance of appellate counsel or where an evidentiary hearing may be deemed necessary to the disposition (emphasis ours), a Rule 27.26 motion is the appropriate vehicle for seeking post-conviction relief." Morris v. State, 603 S.W.2d 938, 941 (Mo. banc 1980). Because movant's claim involves failure to brief certain issues on appeal, it would appear at first glance to be analogous to Hemphill. In the interest of judicial economy, and in view of the beneficial evidence presented at the motion hearing, we nonetheless undertake to examine the claim as if properly raised in this proceeding. Buskuehl v. State, 719 S.W.2d 504, 506 (Mo.App.1986). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625033/ | 769 S.W.2d 522 (1989)
Daniel DeANDA, Appellant,
v.
The STATE of Texas, Appellee.
Nos. 975-87-979-87.
Court of Criminal Appeals of Texas, En Banc.
March 8, 1989.
Rehearing Denied May 10, 1989.
Joseph A. Calamia, El Paso, for appellant.
Steve W. Simmons, Dist. Atty. and Robert Dinsmoor, Asst. Dist. Atty., El Paso, Robert Huttash, State's Atty., Austin, for the State.
*523 Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
MILLER, Judge.
Appellant was convicted by a jury in a single trial on three indictments charging attempted capital murder and on two indictments charging attempted murder. The jury also assessed punishment as life imprisonment for each attempted capital murder conviction and 20 years imprisonment for each attempted murder conviction, the sentences to run concurrently. The Eighth Court of Appeals affirmed appellant's convictions in an unpublished opinion. De Anda v. State, (Tex.App.El Paso No. 08-86-00200-CR, June 17, 1987). We granted appellant's petition for discretionary review to determine whether the Court of Appeals improperly reformed the judgment of the trial court to reflect that the affirmative finding of use of a deadly weapon in all five causes was made by the jury and not the trial judge.
The sufficiency of the evidence to support the convictions is not challenged. We therefore adopt the Court of Appeals' brief recitation of the facts:
This and the four companion cases arise out of a single episode on October 14, 1985, in which Appellant initiated a sniper attack on two Border Patrol agents, seriously wounding one of them. A prolonged gun battle ensued with additional Border Patrol agents, uniformed patrol officers of the El Paso Police Department and the latter's S.W.A.T. team. The incident led to five indictments with five members of the El Paso Police Department designated as complainants.
In the Court of Appeals appellant argued the trial court erred in entering an affirmative finding of his use of a deadly weapon since the jury was the fact finder at both phases of his trial. The judgment in each of the causes reads:
The Court, upon the verdict of the jury, which found the Defendant guilty as charged,[1] enters the affirmative finding that the defendant used a deadly weapon in the commissio (sic) of the offense and the further affirmative finding that the deadly weapon used was a firearm.
The Court of Appeals held, on the basis of Polk v. State, 693 S.W.2d 391 (Tex.Cr.App. 1985), that the judgment improperly ascribed the affirmative finding to the trial judge and that the judgment must be reformed to reflect that the affirmative finding is attributable to the jury, not the court.
The Court of Appeals correctly held that the judgment improperly ascribed the affirmative finding to the trial court. We stated in Polk, supra, that when the jury determines a defendant's guilt and punishment, it is the proper fact finder to determine whether the defendant used a deadly weapon. Thus a properly worded affirmative finding should indicate that the jury made the finding. See Polk, supra at 394-395. The real issue in this cause, however, is whether an affirmative finding was actually made within the dictates of Polk, supra.
In Polk, supra at 394, this Court set out three instances in which an affirmative finding may be properly made:
1. the indictment specifically alleges the words "deadly weapon" in describing the weapon used and the verdict reads guilty "as charged in the indictment";
2. the indictment names a weapon which is per se a deadly weapon and the verdict reads guilty "as charged in the indictment"; or
3. a special issue is submitted during the punishment phase of trial to the trier of fact and answered affirmatively.
In its opinion, the Court of Appeals correctly stated that neither the first nor the third instance above applies in these causes. The indictments did not allege the words "deadly weapon" in describing the weapon used and there was no special issue submitted to the jury via the charge at punishment. A proper affirmative finding could only be made in these causes if the indictments *524 alleged a deadly weapon per se and appellant was found guilty "as charged in the indictment".
The weapon alleged to have been used in each of the indictments was a rifle.[2] The Court of Appeals held that the allegation of a rifle, without further descriptive qualification, see Bravo v. State, 627 S.W.2d 152 (Tex.Cr.App.1982) (30-30 caliber rifle is a deadly weapon per se), alleges a firearm and hence a deadly weapon per se. In so holding, the Court of Appeals reasoned "[c]ommon sense dictates that rifle be immediately associated with firearms since "rifling" is peculiar to that mode of projectile expulsion. Indeed, the dictionary restricts the definition of "rifle" to firearms..." Since a firearm is a deadly weapon by definition, V.T.C.A. Penal Code § 1.07(a)(11)(A), the Court of Appeals concluded a rifle is a deadly weapon per se.
"Deadly weapon" is defined in section 1.07 of the Texas Penal Code. Section 1.07(a)(11), supra, states:
"Deadly weapon" means:
(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.
"Firearm" is not defined in Section 1.07, supra, but it, along with "short-barrel firearm", is defined in V.T.C.A. Penal Code § 46.01. We may use that section as an aid to determining whether a designated weapon is a "deadly weapon" within the context of an affirmative finding. See Ex parte Franklin, 757 S.W.2d 778 (Tex.Cr.App. 1988). Section 46.01 provides in pertinent part:
(3) "Firearm" means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use ...
(10) "Short-barrel firearm" means a rifle with a barrel length of less than 16 inches or ... any weapon made from a shotgun or rifle ... (emphasis added)
From these definitions it is clear that a rifle is a type of firearm. Since a firearm is a deadly weapon by statute, we agree with the Court of Appeals' holding that a rifle is a deadly weapon per se.[3]
After finding a rifle is a deadly weapon per se, the Court of Appeals held that the second alternative under Polk, supra, and Easterling v. State, 710 S.W.2d 569 (Tex. Cr.App.1986), had been satisfied and reformed the judgment to reflect that the jury had made the affirmative finding of use of a deadly weapon in commission of the alleged offenses. Under this second alternative, the trier of fact must find the defendant guilty "as charged in the indictment" for an affirmative finding to be made as a matter of law pursuant to the requirements of Polk, supra at 394. See also Ex parte Flannery, 736 S.W.2d 652 (Tex.Cr.App.1987).
The guilty verdicts in the five causes do not refer back to the indictments. The verdicts merely state that appellant was found guilty of attempted capital murder or attempted murder. Thus, there was no proper affirmative finding made in any cause upon the rendering of the guilty verdicts. The verdicts at punishment, however, all contain the following recitation:
We, the jury, having found the defendant, Daniel De Anda, guilty of [Attempted Capital Murder or Attempted Murder] as charged in the indictment and (sic) assess punishment at...
We hold that this punishment verdict constitutes a proper affirmative finding under the reasoning of Polk, supra. Thus, the *525 Court of Appeals correctly reformed the judgments to reflect an affirmative finding by the jury, the trier of fact at punishment.
Appellant also contends, inter alia, in four grounds for review, that the Court of Appeals erred in holding that the parole law jury charge given pursuant to Art. 37.07, § 4, V.A.C.C.P., is constitutional. We agree with appellant and hold that the Court of Appeals did err in light of our recent decision in Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1988) (Opinion on Rehearing).
Appellant failed to object to the charge at trial; however, we held in Rose, supra, that the failure to object to that charge did not waive a defendant's right to challenge the constitutionality of the charge upon appeal. We also held in Rose, supra, that Art. 37.07, § 4, supra, violated the separation of powers and due course of law provisions of the Texas Constitution and that if an instruction was given under Art. 37.07, § 4, supra, a harmless error analysis must be conducted pursuant to Tex.R.App.Pro. 81(b)(2) to determine whether a reversal of the trial court judgment is necessary.
The judgment of the Court of Appeals is therefore vacated and this cause is remanded to the Court of Appeals for a harm analysis consistent with this opinion.
CLINTON and TEAGUE, JJ., dissent.
NOTES
[1] The judgment was typewritten except for the phrase "which found the Defendant guilty as charged" which was handwritten and apparently inserted after the judgment was prepared.
[2] The indictments charging attempted capital murder alleged a "rife" as the weapon used. These indictments were changed to allege "rifle" by the insertion of a handwritten "1". The Court of Appeals overruled appellant's contention that the misspelling of "rifle" was a fatal defect in the indictments.
[3] We also agree with the Court of Appeals that "[w]e may be able to conjure up some example of ... [a] pistol, revolver or rifle which is not functionally a firearm per definition in [section 46.01(3)], but common sense should prevail over speculative fancy." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625063/ | 522 So. 2d 299 (1988)
James W. STEELEY and Janet D. Steeley
v.
Patsy DUNIVANT.
Civ. 6115.
Court of Civil Appeals of Alabama.
March 2, 1988.
James W. Steeley and Janet D. Steeley, pro se.
Charles Y. Boyd of Rhea, Boyd & Rhea, Gadsden, for appellee.
*300 INGRAM, Judge.
In April 1987, Horace E. McCoy, Sr., filed an action in the small claims court of Etowah County against James W. and Janet D. Steeley, as well as a materialmen's lien on their property. James and Janet Steeley, here appellants, then filed a petition under Chapter 13 of Title 11, U.S. Code, and relief was ordered by the United States bankruptcy court. Appellants also filed an answer and counterclaim in small claims court, adding a third party. In August 1987, the Etowah Circuit Court ordered that all proceedings concerning Horace E. McCoy, Sr., were stayed. That order also dismissed the counterclaim filed by the defendants adding Patsy Dunivant as a third party.
The record reveals that Patsy Dunivant, the daughter of Mr. McCoy, had allegedly called the Steeleys and encouraged them to pay the outstanding debt owed to her father.
Appellants now contend that the trial court erred in granting the motion of Patsy Dunivant to dismiss her as a third party defendant. They argue that, under the automatic stay provision of the Bankruptcy Code, § 362, this dismissal proceeding of the trial court was void and without effect. Borg-Warner Acceptance Corp. v. Hall, 685 F.2d 1306 (11th Cir.1982).
Bankruptcy Code, § 362, states in pertinent part:
"(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970 (15 U.S.C. 78eee(a)(3)), operates as a stay, applicable to all entities, of
"(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title...."
We note that an automatic stay pursuant to this section acts as a stay of court proceedings, but does not deprive a state court of jurisdiction over the matter. In re Clowser, 39 B.R. 883 (Bankr.E.D.Va. 1984). Furthermore, an automatic stay is intended under the provision only as a stay on actual proceedings and similar acts against the debtor. Matter of Compass Development, Inc., 55 B.R. 260 (Bankr.D. N.J.1985). The automatic stay is designed to give the debtor a "breathing spell" from his creditors. In re Ahlers, 794 F.2d 388 (8th Cir.1986). Thus, the trial court did not err in granting the motion to dismiss a third party whom the debtor had asserted a claim against. It was not this type action that the automatic stay was intended to apply to.
The appellants contend that the trial court abused its discretion by not granting a continuance due to the absence of a court reporter. Though we find no error in the trial court's action, we are unable to consider this argument, as no authority was cited for this contention. Rule 28, Alabama Rules of Appellate Procedure, mandates citations of authority for issues raised on appeal. Gunn v. Jefferson County Dept. of Pensions & Security, 467 So. 2d 963 (Ala.Civ.App.1985).
This case is affirmed.
AFFIRMED.
BRADLEY, P.J., and HOLMES, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625053/ | 15 So. 3d 960 (2009)
In re Bonnie B. HUMPHREY.
No. 2009-B-0083.
Supreme Court of Louisiana.
June 26, 2009.
*961 Charles Bennett Plattsmier, Baton Rouge, Robert Samuel Kennedy, Jr., Shreveport, for Applicant.
Albert H. Hanemann, Jr., Bonnie B. Humphrey, for Respondent.
ATTORNEY DISCIPLINARY PROCEEDINGS
PER CURIAM.[*]
This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Bonnie B. Humphrey, an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Humphrey, 05-0462 (La.3/2/05), 894 So. 2d 1128. For the reasons that follow, we now disbar respondent.
FORMAL CHARGES[1]
Count I
In 2000, respondent represented her sister, Judith Myers, in the domestic relations proceeding captioned Judith Brown Myers v. William A. Myers, III, No. 2000-7121 on the docket of the Orleans Civil District Court, Judge Rosemary Ledet presiding. In May 2000, respondent obtained a temporary restraining order on behalf of her sister based upon materially false representations regarding the marital domicile of the parties. Specifically, respondent misrepresented that Mr. Myers' office at #5 Finch Street in New Orleans was the family home of William and Judith Myers, when at the time of the filing, respondent well knew that the family lived in a residence on Dryades Street. As a result of respondent's false representations, Mr. Myers was evicted from his office and suffered the loss of substantial business property and profits.[2] Following a hearing in the matter, at which respondent continued to maintain that #5 Finch Street was the Myers' family home, Judge Ledet made a factual finding that "the Finch Street property was not the family residence of the parties when the action was instituted."
The ODC alleges that respondent's conduct violates Rules 3.3(a) (a lawyer shall not knowingly make a false statement of fact or law to a tribunal), 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 4.4(a) (in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person), and 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct.
Count III
Respondent represented Barbara Mauberret-Lavie in child custody litigation *962 pending in Orleans Civil District Court. Attorneys John Cummings, III and Edith Morris represented the defendant, Michael Lavie. In December 2002, Mr. Cummings filed a complaint against respondent with the ODC, alleging that she engaged in unauthorized and ex parte removal of original pleadings from the court record, refused to permit the cross-examination of Ms. Mauberret-Lavie, and cursed opposing counsel and made obscene hand gestures toward counsel.
The ODC alleges that respondent's conduct violates Rules 3.2 (a lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client), 3.3, and 3.4 of the Rules of Professional Conduct.
Count IV
On August 12, 2002, Ms. Mauberret-Lavie executed an affidavit that was filed into the record of the child custody litigation subject of Count III, supra. In the affidavit, sworn to before a notary and two witnesses, Ms. Mauberret-Lavie stated that she "was advised telephonically on or about Tuesday, August 6, 2002 by Bonnie B. Schultz that she was withdrawing as counsel of record. Please be advised that [Darleen] Jacobs is sole counsel of record in this matter." In October 2002, Ms. Mauberret-Lavie and Mr. Lavie entered into a consent judgment resolving all issues in the case. The consent judgment was signed by Ms. Jacobs as counsel of record for Ms. Mauberret-Lavie, and by attorney Edith Morris as counsel for Mr. Lavie.
Despite the fact that Ms. Mauberret-Lavie was represented by other counsel and that the Lavie case had been concluded by consent judgment, respondent continued to file pleadings in the case. On May 5, 2003, respondent filed a motion for appeal of a judgment of the trial court relating to custody of the minor child. Judge Kern Reese dismissed the motion for appeal as moot in light of the consent judgment. Respondent then filed a writ of mandamus in the Fourth Circuit Court of Appeal, alleging that Judge Reese erred in failing to perfect the appeal. On September 4, 2003, the Fourth Circuit ordered Judge Reese to hold an evidentiary hearing to clarify certain issues specified in its order, including "whether Ms. Schultz is counsel of record for [Ms. Mauberret-Lavie] to handle any appeal ..." of the custody judgment.
Judge Reese held a hearing on October 2, 2003 pursuant to the Fourth Circuit's order. Respondent did not appear at the hearing. Ms. Mauberret-Lavie was present at the hearing, along with one of her counsel, Guy D'Antonio, who unequivocally stated on the record that neither he nor Ms. Mauberret-Lavie had authorized respondent to file the motion for appeal. At the conclusion of the hearing, Judge Reese reported to the court of appeal his finding that respondent was no longer representing Ms. Mauberret-Lavie as of August 9, 2002, and that at no time did Ms. Mauberret-Lavie authorize respondent to proceed with an appeal of the custody judgment or to seek a writ of mandamus.
On October 10, 2003, attorneys for Mr. Lavie filed a motion in the Fourth Circuit seeking sanctions against respondent. The court of appeal ordered respondent to respond to the motion within ten days. In turn, respondent filed a motion seeking an extension of time to respond, in which she, among other things, claimed that she was in possession of evidence that Mr. Lavie and his counsel had committed perjury and blackmail; that opposing counsel was complicit in child molestation; and that Judge Reese had violated the Code of Judicial Conduct.
The court of appeal found that these allegations in respondent's motion violated *963 Rule 2-12.4 of the Uniform Rules of the Courts of Appeal[3] and the Louisiana Code of Civil Procedure. The court of appeal struck the inappropriate comments from the pleadings, held respondent in contempt of court, and transferred the motion for sanctions to the trial court for a determination of the amount of the sanction to be imposed upon respondent. Following a hearing in May 2004, Judge Reese imposed sanctions against respondent in the amount of $13,171.
The ODC alleges that respondent's conduct violates Rules 1.2(a) (scope of the representation), 1.3 (failure to act with reasonable diligence and promptness in representing a client), and 1.16 (terminating the representation of a client) of the Rules of Professional Conduct.
Count V
In 2002, New Orleans attorney Kyle Schonekas represented artist George Rodrigue in a lawsuit captioned George Rodrigue v. Jean Bragg Antiques, L.L. C, et al., No. 02-15035 on the docket of Orleans Civil District Court. In this suit, Mr. Rodrigue alleged that certain pieces of artwork he created had been stolen from him by a former employee and then placed on consignment with the defendant art gallery. The defendants, represented by respondent, denied Mr. Rodrigue's claims and asserted that they were legally in possession of the artwork in question.
At the outset, Mr. Schonekas sought the issuance of a writ of sequestration to secure the artwork in dispute pending the outcome of the litigation. The writ was not issued, but rather, upon agreement of counsel, respondent was designated to hold the artwork in trust until the lawsuit was decided. The trial court's order, rendered in March 2003, further provided that respondent "does not need to post a bond to secure these art works." Respondent was ultimately disqualified as counsel for the defendants in July 2003 because she asserted an ownership interest in one of the pieces of artwork she held in trust, a work known as the Blue Dog "Cut Out with Neon Light."[4]
In August 2004, Mr. Rodrigue settled his dispute with the defendants, who relinquished all claims to the artwork in question. The defendants turned over one of the artworks to Mr. Rodrigue, but respondent still held the Blue Dog and refused to return it, despite repeated demands. In December 2004, the trial court ordered respondent to return the artwork to Mr. Rodrigue, but again she refused to comply. In April 2005, the trial court held respondent in contempt of court for her failure to obey the prior judgment.[5]
*964 In June 2004, Mr. Schonekas filed a complaint against respondent with the ODC. Mr. Schonekas was prompted to file the complaint upon learning that respondent had filed suit seeking damages against him and Mr. Rodrigue on behalf of her former clients. The lawsuit contains unfounded allegations of professional misconduct against Mr. Schonekas.[6]
The ODC alleges that respondent's conduct violates Rule 1.7 (conflict of interest) of the Rules of Professional Conduct.
Count VII
In 2004, respondent filed a writ application with the Fourth Circuit Court of Appeal in which she sought supervisory review of the sanctions imposed upon her by the trial court in connection with Count IV, supra. On January 12, 2005, the court of appeal held respondent in contempt of court for using insulting and discourteous language in a pleading filed with the court, for including irrelevant and inappropriate matter, and for criticizing another person, court, and judge, all in violation of Rule 2-12.4 of the Uniform Rules of the Courts of Appeal and the Louisiana Code of Civil Procedure.
The ODC alleges that respondent's conduct violates Rule 3.3 of the Rules of Professional Conduct.
DISCIPLINARY PROCEEDINGS
Respondent initially failed to answer the formal charges filed against her. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). Soon thereafter, counsel enrolled on behalf of respondent and filed an answer to the formal charges, generally denying any misconduct and suggesting that substantial mitigating factors are present in this matter. Counsel also requested that the deemed admitted order be recalled, which motion was granted.
In October 2006, the ODC amended Count I of the formal charges, adding new factual allegations and additional alleged rule violations. Respondent, through counsel, answered the amended formal charges and denied any misconduct. The matter then proceeded to a formal hearing on the merits.
During the hearing, respondent stipulated that she violated the Rules of Professional Conduct as charged in Count V, relating to the George Rodrigue matter. Respondent also testified at length in mitigation that the misconduct subject of the formal charges was the result of impaired judgment stemming from personal and emotional difficulties and depression that she suffered during the breakup of her marriage, culminating in a nervous breakdown in 2003 and a suicide attempt in the fall of 2004. Respondent also testified that she was "numbing the pain" with alcohol, cocaine, prescription diet pills, and amphetamines. Respondent testified that she stopped using alcohol and drugs following a psychiatric hospitalization in February 2005 and has been sober since that time. In March 2007, respondent voluntarily signed a five-year recovery agreement with the Lawyers Assistance Program.
Hearing Committee Report
After considering the evidence and testimony presented at the hearing, the hearing committee made the following factual findings:
Count IThe committee found that respondent knowingly and intentionally misrepresented to Judge Ledet that the Finch Street property was the marital domicile/family home of William and Judith *965 Myers. The committee based its finding on the testimony of Judge Ledet, who recounted at the hearing that she signed an order on May 8, 2000 allowing Mrs. Myers use of the Finch Street property based on respondent's representations that this was the family home. It was not until a subsequent hearing on May 26, 2000 that Judge Ledet learned that the Finch Street property was actually Mr. Myers' office and that the parties resided on Dryades Street. Judge Ledet further testified that given the actual residence of the parties at the time the order was signed, Mrs. Myers was not entitled to occupancy of Finch Street, and that had she known where the parties were actually living, she would not have granted occupancy of that property to Mrs. Myers. The committee found respondent knew Mrs. Myers was living on Dryades Street at the time she filed the pleading stating that the family home and current mailing address for Mrs. Myers was the Finch Street address. At the time of these incidents, Mr. Myers owned a litigation support business, and respondent contacted his business clients concerning documents that belonged to them which were located at the Finch Street premises. The committee found it particularly troubling that one client, a Houston lawyer, reported he had been contacted by respondent, who requested $500 to let Mr. Myers go into the Finch Street property in order to get photographs and a computer that were needed for the lawyer's death penalty case.
Based on these findings, the committee determined that respondent's knowing and intentional misrepresentations to Judge Ledet regarding the marital domicile/family home of Judith and William Myers caused Mr. Myers to be evicted from his business without cause, deprived Mr. Myers of access to his business records, and damaged his litigation support business. The committee found respondent violated Rules 3.3, 3.4, 4.4, and 8.4(c) of the Rules of Professional Conduct.
Count IIIThe committee found the ODC did not prove by clear and convincing evidence that respondent removed pleadings from the court record of the Lavie matter, as no competent evidence was put forth to show exactly what documents were removed. However, the committee did find that respondent improperly refused to permit cross-examination of her client during a hearing on May 17, 2001 and made obscene comments and gestures to opposing counsel in a hearing on June 5, 2002. In the May 2001 hearing, respondent called her client, Ms. Mauberret-Lavie, to testify and then refused to conclude her direct examination so as to permit opposing counsel an opportunity for cross-examination. The committee rejected respondent's argument that this was proper trial procedure because she took writs to the Fourth Circuit during the hearing on the issue of permissible examination of her client. With respect to the June 2002 hearing, the committee found the hearing transcript clearly confirms that respondent used obscenities in the courtroom and was sanctioned $500 for such. The committee noted it was troubled by respondent's denial of these allegations at the hearing when "the transcript introduced by the ODC confirms that these egregious acts did in fact occur."
Based on these findings, the committee determined that the ODC did not establish by clear and convincing evidence that respondent removed pleadings from the court record without authority. However, the committee found the ODC did prove by clear and convincing evidence that respondent refused to permit cross-examination of her client and made obscene comments and gestures to opposing counsel. The committee found respondent did not violate Rule 3.2 of the Rules of Professional *966 Conduct but did violate Rules 3.3 and 3.4.
Count IVThe committee found that on August 12, 2002, Ms. Mauberret-Lavie executed an affidavit stating that Darleen Jacobs was sole counsel of record. On October 25, 2002, Ms. Mauberret-Lavie and Mr. Lavie entered into a consent judgment agreeing to joint custody of their child. While respondent claimed that it was not her intention to abandon efforts to appeal issues relating to allegations of molestation of the minor child, the committee was persuaded by the per curiam opinion executed by Judge Reese in August 2003, in which he clearly stated that respondent's motion for appeal was moot because of the consent judgment and because "Ms. Bonnie Schultz was dismissed as counsel of record in this matter by an Affidavit executed by Plaintiff, Barbara Mauberret-Lavie, on August 12, 2002." The committee found all the evidence indicated that respondent ceased to be counsel for Ms. Mauberret-Lavie in August 2002 and that any actions she took thereafter were in violation of Rule 1.16.
Thereafter, the Fourth Circuit Court of Appeal found respondent in contempt based on her request for an extension of time to respond to a motion for sanctions filed by opposing counsel. In her filing, respondent accused her opponent of being complicit in child molestation, perjury, and destruction of evidence. Respondent had in fact made these same charges in a June 2002 hearing in Civil District Court, but she never provided any evidence in support of her allegations.
Based on these findings, the committee determined that respondent continued to file pleadings on behalf of Ms. Mauberret-Lavie, namely a writ of mandamus and a motion for appeal, when she no longer represented her, and made unsubstantiated allegations and accused opposing counsel and Mr. Lavie of wrongdoing without sufficient proof or evidence. The committee found respondent violated Rule 1.16 of the Rules of Professional Conduct.
Count VRespondent withdrew her denial of the allegations in this count; accordingly, the committee determined that she violated Rule 1.7 of the Rules of Professional Conduct, as charged.
Count VIIThe committee found that in July 2004, respondent filed a writ application with the Fourth Circuit seeking to set aside the imposition of $13,171 in monetary sanctions. In its prior order of September 4, 2003, the Fourth Circuit had suspended execution of a twenty-four hour jail sentence on the condition that respondent pay a $100 fine and refrain from filing any derogatory pleadings in the court of appeal for three years. In her July 2004 writ application, respondent made the same allegations she had made in her 2003 filing with the Fourth Circuit, and as a result, counsel for Mr. Lavie filed a motion to strike and asked the court of appeal to carry out the execution of the previously suspended contempt sentence.
On September 7, 2004, the court of appeal issued a "show cause" order to respondent to answer the motion to strike within ten days. Respondent answered by filing a 115-page response which again repeated many of the prior allegations. The court of appeal found respondent in contempt again per an order dated January 12, 2005. The court also made a determination that respondent was disabled from practicing law, and transmitted a copy of its findings to the ODC "for their urgent and immediate action to protect the public until such time as she is no longer disabled from whatever is causing her disability." Following the court of appeal's action, respondent was placed on interim suspension effective March 2, 2005.
The committee found the court of appeal's order speaks for itself and particularly *967 noted the grave concern that the court expressed for the public and the legal system as a result of respondent's disability. The committee found respondent violated Rule 3.3 of the Rules of Professional Conduct.
Considering the ABA's Standards for Imposing Lawyer Sanctions, the committee determined that the applicable baseline sanction in this matter is disbarment. The committee found the following aggravating factors apply: a pattern of misconduct and multiple offenses. In mitigation, the committee recognized the following factors: absence of a prior disciplinary record, personal or emotional problems, inexperience in the practice of law, mental disability or chemical dependency, and imposition of other penalties or sanctions.
Under all these circumstances, the committee recommended that respondent be disbarred.[7] One member of the committee dissented and would recommend permanent disbarment.
Both respondent and the ODC objected to the hearing committee's report. Respondent took issue with nearly all of the factual findings made by the committee and argued that disbarment is too harsh. The ODC argued that the committee erred in considering in mitigation respondent's history of drug and alcohol abuse as well as the depression she suffered during the breakup of her marriage.
Disciplinary Board Recommendation
After review, the disciplinary board made the following findings:
Count IThe board deferred to the hearing committee's determination that Judge Ledet was credible when she testified that respondent had represented to her in an ex parte hearing that the Finch Street property was the Myers' family home, and that she would not have granted use of the property to respondent's client absent that representation. According to Judge Ledet, during the hearing, respondent never even alerted her to the possibility that another property might be considered to have been the family home. The board rejected respondent's argument that this testimony by Judge Ledet should be given little weight because the judge admitted she had no specific recollection of reviewing the petition prepared by respondent prior to making her ruling. Judge Ledet clearly recalled how respondent orally represented during the hearing that the Finch Street property was the family home, a fact which later came to be in dispute. Likewise, during the intentional tort suit filed against respondent by Mr. Myers, Judge Ledet testified that she ordered Mr. Myers to be evicted from the Finch Street property in reliance upon respondent's representations.
Based on these findings, the board determined that respondent violated the Rules of Professional Conduct as follows:
Rule 3.3 requires a lawyer to be candid in the lawyer's representations to a tribunal. The hearing at issue was an ex parte hearing, and Rule 3.3(d) further and directly speaks to this situation: "In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse." As respondent's client was her sister, the board found respondent had every ability to meet her obligation under Rule 3.3(d) to candidly *968 inform Judge Ledet where the family lived before the divorce petition was filed.
Rule 3.4 requires a lawyer to be candid as a matter of fairness to an opposing party. As noted, respondent made her misrepresentations at an ex parte hearing. Given that Mr. Myers was not present at the hearing, the court had to rely exclusively upon the representations made by respondent. When respondent provided incomplete and inaccurate information in an effort to advance her sister's interests during a contested divorce, she violated the duty of fairness required by Rule 3.4.
Rule 4.4 requires a lawyer to refrain from employing "means that have no substantial purpose other than to embarrass, delay, or burden a third person, ..." Respondent failed to adhere to this standard when she made incomplete and inaccurate representations, which caused Mr. Myers to be evicted from his office and to suffer considerable financial losses.
Rule 8.4(c) requires a lawyer to refrain from conduct involving dishonesty, fraud, deceit, or misrepresentation. Respondent violated this standard when she provided incomplete and inaccurate information to a court.
Count IIIThe hearing committee found clear and convincing evidence that respondent improperly refused to allow her client to be subject to cross-examination and made obscene comments and gestures to opposing counsel, but that the ODC did not prove that respondent improperly removed pleadings from a court record. The board agreed with each of these findings. On the cross-examination issue, the board noted that the committee accepted as credible testimony to the effect that respondent refused to continue and essentially just walked out of the trial, such that her client was never made available for cross-examination. The record also supports the committee's finding that respondent was sanctioned for telling her opposing counsel "f* * * you" and that she did not deny using the expletive. Finally, the board noted that nothing in the relevant transcript establishes to a clear and convincing standard that the documents respondent took with her were pleadings that had been clocked in or otherwise filed into the court record.
Based on these findings, the board determined that respondent violated the Rules of Professional Conduct as follows:
Rule 3.2 requires a lawyer to make reasonable efforts to expedite litigation. Respondent acted contrary to this rule by refusing to allow her client to be subject to cross-examination and to continue with the trial as directed by the judge. Respondent also acted contrary to Rule 3.2 when she directed an expletive at opposing counsel, and consumed the court's time with imposing sanctions for this misconduct.
Rule 4.4 requires a lawyer to refrain from tactics that have no substantial purpose other than to embarrass, delay, or burden others. Respondent acted contrary to this rule by telling her opposing counsel "f* * * you."
Count IVThe hearing committee found that the ODC proved by clear and convincing evidence that after Barbara Mauberret-Lavie executed an affidavit stating that respondent no longer represented her in the custody litigation described in Count III, respondent nevertheless continued to file pleadings in the trial court and Fourth Circuit Court of Appeal on behalf of Ms. Mauberret-Lavie. Additionally, the court of appeal held respondent in contempt of court for using "vile, obscene, obnoxious, or offensive" language in her appellate brief, when she made unsubstantiated allegations that her opposing counsel was complicit in child molestation, perjury, and destruction of evidence. The trial court, acting at the Fourth Circuit's *969 direction, sanctioned respondent $13,171 for her actions.
The board rejected respondent's argument that Ms. Mauberret-Lavie authorized the appeal to the Fourth Circuit, relying on the affidavit from Ms. Mauberret-Lavie indicating that the attorney-client relationship with respondent had been terminated on August 6, 2002, and that Ms. Mauberret-Lavie was represented by other counsel. The ODC also presented a consent judgment in the litigation, executed on October 25, 2002 by Ms. Mauberret-Lavie, which resolved the issue of child custody. The board deferred to the committee's determination that this evidence (showing a clear expression of the client's intent to terminate the representation and then a consent judgment resolving child custody) was more credible than respondent's testimony.
Based on these findings, the board determined that respondent violated the Rules of Professional Conduct as follows:
Rule 1.2(a) requires that the lawyer respect the client's ultimate authority to decide the objectives and means of the lawyer's representation. Respondent disregarded Ms. Mauberret-Lavie's clear intent that she was no longer represented by respondent, and that the child custody matter had been resolved by Ms. Mauberret-Lavie's consent to judgment.
Rule 1.16 requires an attorney to withdraw from representation when the client discharges the lawyer. Ms. Mauberret-Lavie indicated that she no longer employed respondent, yet respondent continued to present a writ application on Ms. Mauberret-Lavie's behalf.
Rule 4.4 requires a lawyer to refrain from tactics that have no substantial purpose other than to embarrass, delay, or burden others. Respondent acted contrary to this rule by filing pleadings containing the unsubstantiated allegations that her opposing counsel was complicit in child molestation, perjury, and destruction of evidence.
Count VRespondent does not dispute that she was ordered by a court to hold a piece of artwork in trust during litigation to determine its ownership, but that she failed to release the artwork after the court ordered her to do so. According to the formal charges, the court's order to release the artwork followed the court's determination that a conflict of interest barred respondent from continuing the representation, in violation of Rule 1.7. The hearing committee found that respondent committed the misconduct as charged. The board agreed with the committee that respondent engaged in misconduct in this count, but found she violated Rule 1.8(j) of the Rules of Professional Conduct by claiming an ownership interest in the disputed artwork, not the more general conflict of interest rule set forth in Rule 1.7.
Count VIIThis count was initiated by a complaint submitted to the ODC by the Fourth Circuit Court of Appeal. The ODC alleges that respondent was again found in contempt of court by the Fourth Circuit for again filing a pleading with offensive language and unsubstantiated allegations. The hearing committee noted that the pleading at issue was respondent's writ application, in which she asked the court to set aside the $13,171 in monetary sanctions she was assessed for the unauthorized writ application described in Count IV. Finding that the Fourth Circuit's opinion "speaks for itself," the hearing committee concluded that respondent violated Rule 3.3. The board agreed.
The board determined that respondent violated duties owed to her clients, the legal system, and the profession. By its very nature, respondent's conduct was knowing and intentional. For example, the record reflects that respondent was *970 twice held in contempt of the Fourth Circuit, and both times for making the same types of insulting and unsupported allegations about opposing counsel and the trial judge. As another example of knowing and intentional misconduct, respondent was ordered to return property in which her clients claimed an interest, but she failed to do so.
The injury or potential injury stemming from respondent's misconduct was serious or potentially serious. For example, respondent refused to return artwork created by the renowned Louisiana artist George Rodrigue, in which her clients claimed an interest. Additionally, when respondent filed an appeal in a child custody matter that her former client did not authorize, the courts and Ms. Mauberret-Lavie's new counsel had to expend significant time and effort cleaning up the disorder respondent caused. Because respondent's misconduct is intentional, the board determined that under the ABA's Standards for Imposing Lawyer Sanctions, the applicable baseline sanction in this matter is disbarment.
The board found the following aggravating factors apply: a pattern of misconduct and multiple offenses. In mitigation, the board recognized the following factors: absence of a prior disciplinary record, personal or emotional problems, inexperience in the practice of law, mental disability or chemical dependency,[8] and imposition of other penalties or sanctions.
The board concluded that although respondent's individual acts of misconduct are different, the common thread running through them is the intent behind them. These acts of misconduct were knowingly and intentionally committed. Disbarment is the appropriate baseline sanction for such misconduct, and the board found no reason to deviate from the baseline under the facts of this case. Accordingly, the board recommended that respondent be disbarred.
Respondent filed an objection to the disciplinary board's recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).
DISCUSSION
Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So. 2d 343; Louisiana State Bar Ass'n v. Boutall, 597 So. 2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee's factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So. 2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So. 2d 150.
The factual findings of the hearing committee, as modified by the disciplinary board, are generally supported by the evidence in the voluminous record of this matter. Many of these findings, in particular those made by the committee, rest *971 upon credibility determinations to which we give great deference.[9] However, we do not find clear and convincing evidence that respondent refused to allow her client to be cross-examined by opposing counsel, as charged in Count III. With this one exception, respondent violated the Rules of Professional Conduct as found by the board.
Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent's actions. In considering that issue, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis, 513 So. 2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington, 459 So. 2d 520 (La.1984).
Respondent's misconduct involves making false representations in a judicial proceeding, attempting to represent a client after being discharged, converting client property, engaging in a conflict of interest, and being held in contempt for filing pleadings containing offensive language and unsubstantiated allegations. The ABA's Standards for Imposing Lawyer Sanctions indicate that the baseline sanction for this misconduct is disbarment.[10]
As aggravating factors, we recognize a pattern of misconduct and multiple offenses. The record supports the following mitigating factors: absence of a prior disciplinary record, personal or emotional problems, mental disability or chemical dependency, and imposition of other penalties or sanctions.
While there are a number of mitigating factors in this case, we do not find that they are sufficient to justify a deviation from the baseline sanction of disbarment. As the board correctly noted, a common thread running through respondent's misconduct is that it is knowing and intentional. Moreover, respondent has caused significant actual harm. Under these circumstances, we decline to impose a lesser sanction than disbarment.
DECREE
Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Bonnie B. Humphrey, Louisiana Bar Roll number 17125, be and she hereby is disbarred, retroactive to her March 2, 2005 interim suspension. Her name shall be stricken from the roll of attorneys and her license to practice law in the State of Louisiana shall be revoked. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty *972 days from the date of finality of this court's judgment until paid.
NOTES
[*] Chief Justice Catherine D. Kimball recused herself after oral argument, and she has not participated in the deliberation of this case. Retired Judge Philip Ciaccio, assigned as Justice ad hoc, sitting for Justice Chet D. Traylor, now retired.
[1] In the formal charges filed by the ODC in April 2006, respondent was originally charged with a total of seven counts of misconduct. However, during the hearing in this matter, the ODC dismissed Count VI in its entirety. Furthermore, in its report, the disciplinary board recommended that Count II be dismissed for lack of clear and convincing evidence of a violation of the Rules of Professional Conduct. The ODC does not object to the board's finding in this regard. Accordingly, no reference is made in this opinion to either Count II or Count VI.
[2] Mr. Myers subsequently sued respondent for damages arising out of this matter. In January 2005, Mr. Myers obtained a $375,000 default judgment against respondent. This judgment was later discharged in respondent's personal bankruptcy.
[3] Rule 2-12.4 of the Uniform Rules of the Courts of Appeal provides in pertinent part:
The language used in the brief shall be courteous, free from vile, obscene, obnoxious, or offensive expressions, and free from insulting, abusive, discourteous, or irrelevant matter or criticism of any person, class of persons or association of persons, or any court, or judge or other officer thereof, or of any institution. Any violation of this Rule shall subject the author, or authors, of the brief to punishment for contempt of court, and to having such brief returned.
[4] Respondent claimed that the defendants gave her the Blue Dog as her legal fee for representing them in the suit brought by Mr. Rodrigue. The trial court found that the artwork in question was the basis of the dispute between Mr. Rodrigue and the defendants, and that under Rule 1.8(j) of the Rules of Professional Conduct, respondent could not ethically acquire a proprietary interest in the cause of action she was handling for her clients. Accordingly, the trial court ordered that respondent be disqualified as counsel for the defendants based upon her conflict of interest.
[5] Mr. Schonekas testified that after expending considerable time, effort and money, he finally recovered the Blue Dog in March 2006 from a convicted drug dealer who contended he had purchased it from respondent for $3,000. The Blue Dog is alleged to be valued at approximately $50,000.
[6] The suit was eventually dismissed on exceptions filed by Mr. Schonekas.
[7] The two members of the committee who recommended disbarment felt that the mitigating circumstances were sufficient to warrant allowing respondent the opportunity to apply for readmission. The majority suggested that when respondent applies for readmission, she should be "required to put forth evidence that she has been alcohol and drug-free during the time of her temporary disbarment."
[8] The board rejected the ODC's argument that this factor should not be considered in mitigation at all, reasoning that there is evidence of a causal link between respondent's depression and drug abuse and the misconduct at issue. Nevertheless, the board noted that not every instance of misconduct was affected by mental disability/chemical dependency issues, as some conduct occurred outside the relevant time frame. Therefore, for the conduct described in Counts I, III, and IV, the board ascribed no mitigation to respondent's mental disability/chemical dependency evidence.
[9] This court generally accepts the credibility evaluations made by those committee members "who were present during respondent's testimony and who act as the eyes and ears of this court." In re: Bolton, 02-0257 (La.6/21/02), 820 So. 2d 548.
[10] See Standards 4.11 ("disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client"); 6.11 ("disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information,..."); 6.21 ("disbarment is generally appropriate when a lawyer knowingly violates a court order or rule with the intent to obtain a benefit for the lawyer or another, and causes serious injury or potentially serious injury to a party, or causes serious or potentially serious interference with a legal proceeding"). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1070780/ | IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON
________________________________________________
LORETTA TRULL,
Petitioner-Appellant,
Crockett Chancery No. 6967
Vs. C.A. No. 02A01-9603-CH-00041
MARGARET CULPEPPER,
Commissioner of Tennessee
Department of Employment
Security and KERR PLASTIC
PRODUCTS; MANPOWER
TEMPORARY SERVICES,
Defendants-Appellees.
___________________________________________________________________________
FROM THE CHANCERY COURT FOR CROCKETT COUNTY
THE HONORABLE GEORGE R. ELLIS, JUDGE
Beth S. Bates of Jackson
For Appellant
Charles W. Burson, Attorney General and Reporter
Robeter W. Stack of Nashville
Jennifer H. Small, Deputy Attorney General
For Appellee, Culpepper
AFFIRMED
Opinion filed:
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
DAVID R. FARMER, JUDGE
HEWITT P. TOMLIN, JR., SENIOR JUDGE
This is an unemployment compensation case. Petitioner, Loretta Trull, appeals from the
order of the chancery court dismissing her petition for certiorari and affirming the decision of
the Board of Review that disallowed her claim for unemployment compensation benefits.
Trull was a machine operator for Kerr Plastic Products (Kerr) from April 1994 to March
1995.1 Kerr has an attendance policy where employees accumulate points for each absence or
tardiness incident. An employee is assessed six points for a day of absence, an additional three
points if that employee fails to notify Kerr of the upcoming absence at least one-half hour prior
to the scheduled start of the shift, and two points for any tardiness. An employee who reaches
50 points is automatically terminated.
On March 7, 1995, Trull reached 50 points and, on March 9, 1995, she was terminated
for excessive absences. The points were accumulated over a three month period, from December
1994 through March 7, 1995. Trull’s points mostly resulted from family illnesses over that
period to herself, her daughter, and her mother. According to Beth Wiseman, Human Resources
Manager at Kerr, twenty-seven of the points were from Trull’s illnesses and twenty-three were
for family emergencies. In addition to the illnesses, Trull was tardy one day and was absent one
day because of her daughter’s wedding. On January 24, 1995, Trull received a verbal warning
about her point total. However, she accumulated more points, and on February 21, 1995, she
received a written warning. On March 6 and 7, 1995, Trull was absent because her mother was
in intensive care at the hospital. The only fact in dispute is the time of a phone call made by
Trull on March 6 to notify Kerr that her mother was ill. Kerr claims the call was within one-half
hour of Trull’s scheduled shift which is in violation of its policy and, therefore, they assessed
her an additional three points. Trull claims the call was ten minutes earlier than Kerr claims, and
she should not have been assessed the additional three points. However, the additional points
forced her total over the set level of 50 points, and she was terminated.
Kerr’s policy does not require medical proof of an illness, so Trull did not provide
medical documentation for the illnesses or the emergencies. Basically Kerr’s policy is a no-fault
policy, but the employee can work off the points if he or she works for a period of time without
accumulating more points. In addition, a Kerr employee may request personal time off or a
personal leave of absence to attend to family emergencies or personal illness without
accumulating points. To be effective, the request for a leave of absence must be in writing. Trull
claims that she attempted to request a leave of absence, however, her request was not in writing
and, therefore, was not honored by Kerr.
1
Before joining Kerr as a permanent employee, Trull was assigned to Kerr as a
temporary employee through Manpower Temporary Services.
2
Trull filed a claim for unemployment benefits on March 22, 1995. The Tennessee
Department of Employment Security (TDES) denied the claim for unemployment benefits based
on T.C.A. § 50-7-303(a)(2) (Supp. 1996). The TDES decision states: “Claimant was discharged
from most recent employment because of excessive tardiness and/or absenteeism. Evidence
shows that there were warnings prior to discharge. This is considered work-related misconduct.
Claim is denied under TCA 50-7-303.” Trull appealed the denial and a hearing was held on May
11, 1995. On May 16, 1995, the Appeals Tribunal affirmed the TDES decision. The decision
of the Appeals Tribunal states in part pertinent to this appeal as follows:
FINDINGS OF FACT: The appeal was filed timely, and the
Appeals Tribunal has jurisdiction. Claimant’s most recent
employment prior to filing this claim was with Kerr Plastics
Products, from April 8, 1994 until March 9, 1995. She was
discharged for excessive absenteeism. Claimant had worked for
the employer approximately 13 months and was absent or left
early 12 times. Some of the absences were because of family
illness and personal illness. None of the personal illnesses were
documented by a doctor’s statement. On January 28, 1995,
claimant received a verbal warning. On February 24, 1995, she
received a written warning about her absenteeism.
CONCLUSIONS OF LAW: Although the claimant did have
some mitigating circumstances causing her to miss scheduled
work, her accumulated absences were what caused her to be
discharged and not any single instance of absenteeism. Claimant
was unable to substantiate with medical proof a need to be off
work. Therefore, the Appeals Tribunal finds that claimant
violated the very liberal attendance policy of the employer, and
also violated a duty she had to report for scheduled work even
after being warned. Therefore, it is found that 12 attendance
policy infractions in a 13 month period is misconduct under TCA
§ 50-7-303 (a)(2). Therefore, taking into consideration the strong
agreement [sic] of the claimant’s counsel, the decision of the
Agency which denied the claim is affirmed.
DECISION: The claimant is not eligible for unemployment
benefits under TCA § 50-7-303 (a)(2). The claim is denied as of
the date of filing and until the claimant qualifies for benefits in
accordance with the Tennessee Employment Security Law.
Trull appealed the Tribunal’s decision to the TDES Board of Review. The Board of Review
adopted the Tribunal’s findings of fact and conclusions of law and affirmed the decision. On
July 21, 1995, Trull filed her petition for certiorari in the Chancery Court of Crockett County,
and the Chancellor subsequently found that the Board of Review’s decision was supported by
the evidence, affirmed its decision, and dismissed the petition. Trull has appealed, and presents
the issues as follows: 1) whether her personal and family illness related absences were “work
related misconduct” within the meaning of T.C.A. § 50-7-303(a)(2); and 2) whether or not
3
misconduct occurred because she was mistakenly assessed three discipline points too many and
thus should not have been terminated pursuant to Kerr’s own policy. The issue we must decide
is whether the Board of Review’s decision that Trull is not entitled to unemployment
compensation benefits is supported by substantial and material evidence.
The standard of judicial review applicable in unemployment compensation benefit cases
where the trial court sits as an appellate court is set forth in T.C.A. § 50-7-304(I)(2) and (3)
(Supp. 1996):
(2) The chancellor may affirm the decision of the board, or the
chancellor may reverse, remand, or modify the decision if the
rights of the petitioner have been prejudiced because the
administrative findings, inferences, conclusions or decisions are:
* * * * * * *
(E) Unsupported by evidence which is both
substantial and material in the light of the entire
record.
(3) In determining the substantiality of evidence, the chancellor
shall take into account whatever in the record fairly detracts from
its weight, but the chancellor shall not substitute the chancellor’s
judgment for that of the board of review as to the weight of the
evidence on questions of fact. No decision of the board of review
shall be reversed, remanded, or modified by the chancellor unless
for errors which affect the merits of the final decision of the
board.
Substantial and material evidence is such relevant evidence as a reasonable mind might accept
to support a rational conclusion and such as to furnish a reasonably sound basis for the action
under consideration. Southern Ry. v. State Bd. of Equalization, 682 S.W.2d 196, 199 (Tenn.
1984) (citations omitted). Courts should not disturb a reasonable decision of an agency which
has expertise, experience and knowledge in a particular field. Id.
This Court must apply the same standard as the trial court in reviewing the trial court's
decision in an unemployment compensation case. Ford v. Traughber, 813 S.W.2d 141, 144
(Tenn. App. 1991). In Sabastian v. Bible, 649 S.W.2d 593, 594-5 (Tenn. App. 1983), we stated:
In order to sustain the Board of Review's application of the
provisions of the statute, we need not find that its construction is
the only reasonable one or even that it is the result we would have
reached had the question arisen in the first instance in a judicial
proceeding. The reviewing court's function is severely limited.
All that is needed to support the commission's interpretation is
that it has warrant in the record and a reasonable basis in law.
The Board's ruling disqualifying Trull for benefits was based upon T.C.A. §
4
50-7-303(a)(2) (Supp. 1996) which we quote in pertinent part:
50-7-303. Disqualification for benefits. -- (a) Disqualifying
Events. A claimant shall be disqualified for benefits:
(2) If the commissioner finds that the claimant has been
discharged from such claimant’s most recent work for misconduct
connected with such claimant’s work, such disqualification shall
be for the duration of the ensuing period of unemployment and
until such claimant has secured subsequent employment . . . .”
Trull was terminated by Kerr because repeated absences and tardiness caused her to
accumulate 50 points, the termination level under Kerr’s policy. Trull argues that her absences
for family and personal illness were beyond her control, and therefore, not misconduct. Trull
does not dispute that she was absent, but, instead contends that her absences were not work-
related misconduct.
The unemployment compensation statutes were enacted for the benefit of the
unemployed, and since the disqualification for benefits because of misconduct connected with
work is penal in nature, a liberal construction of the statute in favor of the employee is required.
Weaver v. Wallace, 565 S.W.2d 867, 869-70 (Tenn. 1978); Miotke v. Kelley, 713 S.W.2d 910,
913 (Tenn. App. 1986). The General Assembly did not provide a definition of misconduct
connected with employment. Therefore, misconduct within the meaning of T.C.A. § 50-7-
303(a)(2) must be determined on a case by case basis. Miotke, 713 S.W.2d at 913. The burden
of proving the disqualification for benefits rests on the employer. Id.
Excessive absenteeism may be the basis of a finding of misconduct warranting the denial
of unemployment benefits, but that level of absenteeism must be determined on an ad hoc basis.
Wallace v. Stewart, 559 S.W.2d 647, 648 (Tenn. 1977), Miotke, 713 S.W.2d at 913. In Wallace,
the Supreme Court considered whether absenteeism could be misconduct:
No aspect of contract of employment is more basic than
the right of the employer to expect employees will appear for
work on the day and at the hour agreed upon. Persistent failure
to honor that obligation evinces a substantial disregard for the
employer’s interest and may justify a finding of misconduct
connected with the employment.
Wallace, 559 S.W.2d at 648.
While unexcused and unjustified absenteeism can be a basis for finding misconduct,
absences due to illnesses and job injuries do not constitute misconduct under the Employment
Security Law. Simmons v. Traughber, 791 S.W.2d 21, 26 (Tenn. 1990). Trull relies on
5
Simmons to establish that her absences were not misconduct. In Simmons, the Supreme Court
remanded the cause to TDES for a new hearing. Id. at 26. However, the Court remanded the
case because the plaintiff was prejudiced by lack of counsel not because some of the plaintiff’s
absences were excused. Id. The Supreme Court stated that “[a] competent attorney, through
efficient cross-examination and introduction of medical records, may have been able to show that
Plaintiff was absent so frequently because of injuries and poor health.” Id.
In the instant case, Trull was properly represented by counsel and presented witnesses
and evidence. However, the agency, the Appeals Tribunal, the Board of Review, and the
chancery court all felt that Kerr had carried its burden of proving that her excessive absenteeism
was misconduct. We believe that substantial and material evidence supports the Board’s
decision that Trull’s pattern of absences and tardiness constituted misconduct related to her
work. Like the Appeals Tribunal and the Board of Review, we believe that she “violated the
very liberal attendance policy of the employer, and also violated a duty she had to report for
scheduled work even after being warned.”
Trull was terminated after she reached Kerr’s policy level of 50 points. Only twenty-
seven of those points were for her own illnesses. We do not believe that an absence to attend to
an adult daughter’s illness or to participate in the daughter’s wedding is excusable. In addition,
Kerr provided a policy that allowed employees to take a personal leave of absence when
confronted with a family crisis like Trull faced when her mother was in intensive care. However,
Trull did not follow Kerr’s policy and did not appear for work. Although the cause of the
absences is unfortunate, Trull’s inability to follow Kerr’s policy resulted in her termination.
These absences are part of a pattern of actions by Trull that show a “substantial disregard for the
employer’s interest.” Wallace, 559 S.W.2d at 648.
From our examination of the entire record, we find substantial and material evidence to
support the decision of the Board of Review that Trull’s absences and tardiness constituted
misconduct related to her work as provided in T.C.A. § 50-7-303(a)(2) (Supp. 1996). The
judgment of the chancery court is affirmed, and the costs of this appeal are assessed against
Trull.
_________________________________
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
6
CONCUR:
_________________________________
DAVID R. FARMER, JUDGE
_________________________________
HEWITT P. TOMLIN, JR.
SENIOR JUDGE
7 | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1555276/ | 775 F.Supp. 513 (1991)
Joyce FISCHMAN
v.
BLUE CROSS & BLUE SHIELD OF CONNECTICUT, INC.
Civ. No. N-90-229(JAC).
United States District Court, D. Connecticut.
October 15, 1991.
Frank W. Murphy and Barbara L. Coughlan, Tierney, Zullo, Flaherty & Murphy, Norwalk, Conn., for plaintiff.
Charles L. Howard and Mark F. Kohler, Shipman & Goodwin, Hartford, Conn., for defendant.
JOSÉ A. CABRANES, District Judge:
Plaintiff Joyce Fischman brings this action against defendant Blue Cross & Blue Shield of Connecticut, Inc. ("Blue Cross") to recover medical expenses incurred in the treatment of her late husband, Sidney Fischman ("Fischman"). Contending that Fischman's treatment related to a pre-existing condition excluded by the employee welfare benefit plan it issued, Blue Cross now moves for summary judgment. At issue is whether a plan beneficiary's illness is excluded from coverage as a pre-existing condition when medical advice for the illness was recommended or received before the illness was accurately diagnosed a question here governed by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. ("ERISA"). For the reasons stated below, Blue Cross' motion for summary judgment is granted.
*514 BACKGROUND
Sidney Fischman was the president and an employee of Sid Fischman Associates, Inc. Fischman applied for and was accepted for membership in a group health benefit plan ("the Plan") through Manufacturers' Associates of Southern Connecticut and Blue Cross. The Plan certificate (the "Certificate") provided that
[t]he benefits specified in this Certificate cannot be provided for a pre-existing condition, disease, or ailment, if:
the condition existed within the Pre-Existing Condition Period, as specified in the Schedule of Benefits, in such a manner as would cause a reasonably prudent person to seek diagnosis, care, or treatment; or medical advice or treatment was recommended or received within the Pre-Existing Condition Period as specified in the Schedule of Benefits.
Certificate at 36. The Schedule of Benefits specified the Pre-Existing Condition Period as the six months prior to the effective date of coverage, id. at 11, that date being April 1, 1989. Complaint ¶ 9.
Fischman died of rectal cancer on January 11, 1990. Over several months prior to the effective date of coverage under the Plan Fischman, in visits to various physicians, complained of symptoms such as frequent bowel movements and bloody stool. Memorandum of Law in Support of Defendant's Motion for Summary Judgment (filed Apr. 11, 1991) ("Defendant's Memorandum"), Exs. I, J (office notes of Jason Burack, M.D., and Michael Tager, M.D.).
As these symptoms persisted, Fischman followed the advice of his brother-in-law and visited a gastroenterologist, Dr. Harvey Riback. Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment (filed May 2, 1991) ("Plaintiff's Memorandum"), Ex. E (Deposition of Joyce Fischman) at 45-46. On March 30, 1989, Dr. Riback performed a digital rectal examination on Fischman that revealed bloody mucous. Dr. Riback that day arrived at a "differential diagnosis" of diverticulitis, polyps, neoplasm, colitis, or arteriovenous malformation. Defendant's Memorandum, Ex. F (office notes of Harvey Riback, M.D.), Ex. E (deposition of Dr. Harvey Riback) ("Riback Deposition") at 42-43. Neoplasm is a term that can include cancer, but Dr. Riback did not initially expect cancer, id., and the differential diagnosis did not specify rectal cancer in particular.
During the March 30, 1989, visit, Dr. Riback discussed the differential diagnosis with Fischman and recommended a colonoscopy, which he subsequently performed on April 11, 1989. Riback Deposition at 47, 51-52. The colonoscopy disclosed a rectal mass later determined to be rectal cancer. Plaintiff's Memorandum, Ex. G (colonoscopy report). Dr. Riback testified at deposition that the rectal cancer clearly was the cause of Fischman's symptoms observed at the examination on March 30, 1989, two days before the Plan's effective date of coverage. Riback Deposition at 86-88. Plaintiff does not challenge Dr. Riback's conclusion that Fischman's rectal cancer caused the symptoms Dr. Riback observed on March 30, 1989. Indeed, plaintiff notes in her brief that "up through the end of the Pre-Existing Condition Period, Mr. Fischman experienced some annoying symptoms, which may in retrospect be attributed at least in part to his rectal carcinoma." Plaintiff's Memorandum at 20-21.
Plaintiff and her husband submitted proof of loss forms to Blue Cross regarding Fischman's rectal cancer. Complaint ¶ 22. In response they received several form letters stating that "[s]ervices which are related to a pre-existing condition are not payable during the first 12 months of membership." Plaintiff's Memorandum, Ex. H (Explanation of Benefits Form). Fischman's attorney subsequently inquired of Blue Cross regarding the denial of benefits in letters dated October 6, 1989, November 10, 1989, December 11, 1989, and December 18, 1989. Plaintiff's Memorandum, Exs. I, J, K, L. Blue Cross declined to reply, except by an unsigned form letter dated March 29, 1990, which stated that services relating to a pre-existing condition were excluded from coverage. Id., Ex. M. Plaintiff's attorney reports that plaintiff *515 did not learn how Blue Cross had reviewed her claims until the deposition of a Blue Cross employee on April 12, 1991. Id., Ex. L (Affidavit of Frank W. Murphy). Although the question is not presented here, it would be difficult to conclude that plaintiff received the "[s]ervice, plain and simple" of which Blue Cross boasted on its letterhead. See id., Ex. M.
Plaintiff filed this action alleging wrongful denial of benefits under ERISA and failure to provide the "full and fair review" of benefit claims required by ERISA, 29 U.S.C. § 1133(2). Plaintiff also asserted various pendent state law claims, which were dismissed by prior ruling entered December 16, 1990. Blue Cross now moves for summary judgment on the remaining ERISA claims. It argues (1) that Fischman's rectal cancer was a pre-existing condition excluded from coverage because a reasonably prudent person would have sought diagnosis, advice, or treatment for Fischman's symptoms during the pre-existing condition period; (2) that Fischman actually received medical advice or treatment for the rectal cancer during the pre-existing condition period; and (3) that whatever procedural improprieties may have occurred in processing plaintiff's claim, a substantive remedy is unavailable. Because I conclude that medical advice for Fischman's rectal cancer was both recommended and received during the pre-existing condition period, it is unnecessary to consider Blue Cross' first argument that a reasonably prudent person experiencing Fischman's symptoms would have sought diagnosis, advice, or treatment.
DISCUSSION
Although the parties have vigorously disputed whether a reasonable and prudent person experiencing Fischman's symptoms would have sought medical diagnosis, advice or treatment, this factual issue need not be addressed in order to dispose of the instant motion. As noted earlier, plaintiff does not contradict Dr. Riback's sworn testimony that the symptoms he observed in his examination during the pre-existing condition period were caused by the rectal cancer not diagnosed until after the pre-existing condition period had ended. Summary judgment is appropriate where, as here, there are no material facts in dispute. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The parties agree that the Plan in question was governed by ERISA, 29 U.S.C. § 1002(1)(a), and that Fischman was a plan participant, 29 U.S.C. § 1002(7). The construction of the Plan is therefore a question of federal common law. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). While state law precedents accordingly do not bind this court, they are of considerable persuasive value. "`[T]he federal common law of rights and obligations' [under ERISA] must embody common-sense canons of contract interpretation." Burnham v. Guardian Life Ins. Co. of America, 873 F.2d 486, 489 (1st Cir.1989) (citation omitted). Moreover, "straightforward language in an ERISA policy must be given its natural meaning." Id. Because the Plan did not grant Blue Cross discretionary authority to determine eligibility for benefits to construe the terms of the Plan, the parties agree that this court must review plaintiff's claim under a de novo standard. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 956, 103 L.Ed.2d 80 (1989).
A.
Was Fischman's Rectal Cancer a "Pre-existing Condition"?
Plaintiff contends that because Fischman's rectal cancer was not diagnosed in the pre-existing condition period, it was not a pre-existing condition as defined by the Plan. Specifically, plaintiff argues, Fischman was not given medical advice or treatment for rectal cancer during the pre-existing condition period in the sense that Dr. Riback did not diagnose rectal cancer until after the colonoscopy, which took place shortly after the pre-existing condition period had ended.
*516 This argument fails. To be sure, the Plan's provision excluding pre-existing conditions from coverage is not a model of lucid English prose. However, by its terms it does not require that medical advice regarding or treatment of an extant condition must be recommended or undertaken after an accurate diagnosis of the condition in order for the condition to be excluded from coverage. To be made sensible, the phrase of the exclusion referring to "medical advice or treatment [that] was recommended or received" must relate back to the immediately prior phrase adverting to the existence of the condition "in such a manner as would cause a reasonably prudent person to seek diagnosis, care, or treatment." This prior phrase clearly contemplates that reasonable and prudent persons will seek treatment while not knowing the correct diagnosis of their symptoms and nonetheless have pre-existing conditions excluded by the Plan. The "advice or treatment" mentioned in the following phrase thus comprehend advice regarding or treatment of conditions not yet accurately diagnosed.
Other courts construing similar or identical language have similarly concluded that illnesses the symptoms of which were observed by a physician during the pre-existing condition period are excluded from coverage despite the absence of an accurate diagnosis. See, e.g., Cury v. Colonial Life Ins. Co. of America, 737 F.Supp. 847 (E.D.Pa.1990) (insurance policy governed by ERISA excluding "sickness ... for which [the insured] received medical treatment or consultation" excluded coverage of multiple sclerosis despite fact that multiple sclerosis was not yet definitively diagnosed during pre-existing condition period); Zeh v. National Hospital Association, 233 Or. 221, 377 P.2d 852, 854-55, 857-58 (1963) (neurologist's differential diagnosis was medical care or treatment during pre-existing condition period excluded from coverage); Mogil v. California Physicians Group, 218 Cal.App.3d 1030, 267 Cal.Rptr. 487, 491 (1990) (collecting numerous appellate cases and extensively discussing common law rule of interpretation that a pre-existing condition is one that manifests itself in the pertinent period, even without diagnosis). Plaintiff has not drawn the court's attention to any cases specifically supporting her assumption that the condition must be accurately diagnosed before it may be considered a pre-existing condition excluded from coverage.
The rationale of the case law appears to be not merely that the language of the policies is clear. It is also that
the underlying purpose of the limiting language of preventing unscrupulous applicants from fraudulently obtaining coverage for known, undisclosed preexisting illness [would be defeated] by placing the burden on the insurer of establishing precisely what an insured subjectively knew with regard to an illness.
Mogil, 267 Cal.Rptr. at 493; see also id. at 491. It would be very difficult for Blue Cross or any other insurer to establish precisely when an insured was accurately diagnosed with a particular ailment and when the insured became aware of the diagnosis. Further, coverage should not turn on whether the physician suspected a number of different ailments or had reached a conclusive diagnosis. Such a line is often not clear in medicine, and in any event it would be difficult for the insurer to determine whether the line had been crossed before or after a critical date. It cannot be ignored that, like the insured, the physician will often have a financial interest in favor of coverage. There is no intimation of dishonesty in this case, and application of the rule seems harsh; yet "it is the duty of all courts of justice to take care, for the good of the community, that hard cases do not make bad law." United States v. Clark, 96 U.S. 37, 49, 24 L.Ed. 696 (1877) (Harlan, J., dissenting) (citation omitted).
Dr. Riback's rectal examination of Fischman on March 30, 1989, disclosed the bloody mucous that was later determined to have been a symptom of the rectal cancer. Dr. Riback on that date supplied a differential diagnosis (albeit one not specifying rectal cancer) and recommended a colonoscopy. I need not decide whether Fischman's prior visits to other physicians and other treatments might have constituted *517 "medical advice or treatment" as defined by the relevant provision of the Plan. For it is clear that Dr. Riback's differential diagnosis and recommendation of a colonoscopy on March 30, 1989, were medical advice recommended and received regarding Fischman's rectal cancer. Fischman's rectal cancer was therefore unquestionably a pre-existing condition excluded from Plan coverage.
B.
May Plaintiff Recover for Denial of "Full and Fair Review"?
Plaintiff additionally argues that Blue Cross violated procedural provisions of ERISA in denying her benefits. Plaintiff recounts a history of conclusory form letters sent by Blue Cross in response to specific inquiries by plaintiff and her attorney regarding coverage. It is a history with which anyone who has ever submitted a health insurance claim can readily empathize.
Blue Cross argues that it complied with ERISA procedures and that even if procedural violations occurred, the only remedy available is procedural, not substantive in other words, failure of the plan fiduciary (here, Blue Cross) to provide full and fair review may be remedied only by remand to the fiduciary with instructions to undertake the proper review of the plan beneficiary's claim.[1] In support of this proposition Blue Cross relies upon a number of cases from other circuits, such as Ashenbaugh v. Crucible, Inc., 1975 Salaried Retirement Plan, 854 F.2d 1516, 1532 (3d Cir.1988), cert. denied, 490 U.S. 1105, 109 S.Ct. 3155, 104 L.Ed.2d 1019, rehearing denied, 492 U.S. 932, 110 S.Ct. 12, 106 L.Ed.2d 627 (1989), and Wolfe v. J.C. Penney, Inc., 710 F.2d 388, 393 (7th Cir.1983). However, adopting the view of the Ninth Circuit in Blau v. Del Monte Corp., 748 F.2d 1348, 1353-54 (9th Cir.1984), our own Court of Appeals has held that procedural violations by an ERISA fiduciary may so taint the fiduciary's discretionary decision as to make it arbitrary and capricious, and subject to a substantive remedy that is, an order directing provision of the particular benefits requested by the plan beneficiary. Gilbert v. Burlington Industries, Inc., 765 F.2d 320, 328-29 (2d Cir.1985); Veilleux v. Atochem North America, Inc., 929 F.2d 74, 76 (2d Cir.1991).
Nonetheless, plaintiff's argument is unavailing. As plaintiff notes in her brief, see Plaintiff's Memorandum at 11, Blue Cross' decision whether or not to provide coverage under the Plan was not discretionary, and is subject to de novo review in this court. Gilbert and Blau, relied upon by plaintiff, are therefore not in point because in those cases a substantive remedy to procedural violations may have been necessary to prevent an abuse of discretion by the fiduciary. Here Blue Cross has no discretion to abuse. Put another way, the substantive remedy plaintiff was entitled to seek here has effectively already been denied by the court's de novo determination that Fischman's rectal cancer was a pre-existing condition excluded from Plan coverage.
This result is not entirely a pleasing one. It suggests that whenever a plan beneficiary finds himself or herself in the situation plaintiff alleges here receiving conclusory form letters from the plan fiduciary in response to specific inquiries the only means of learning the actual basis of a denial of benefits lies in a lawsuit such as this one. As long as the plan fiduciary is convinced its position can withstand judicial review, it need not elaborate that position to the plan participant through regular correspondence or other channels short of a lawsuit. On the other hand, more elaborate explanations to disappointed plan beneficiaries would entail greater administrative expense. Congress has apparently given greater weight to the latter consideration, and plaintiff cites no authority for an award for procedural violations alone where the plan fiduciary's ultimate decision was correct. Accordingly, Blue Cross's motion for summary judgment on plaintiff's claim for procedural violations must be granted.
*518 CONCLUSION
For the reasons stated above, Defendant's Motion for Summary Judgment (filed Apr. 11, 1991) is GRANTED. Judgment shall enter for defendant on all remaining claims.
It is so ordered.
NOTES
[1] Plaintiff does not seek the procedural remedy of remand to Blue Cross for further review of plaintiff's claims. Plaintiff characterizes such further review as "futile." Complaint ¶ 31. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1555290/ | 775 F.Supp. 123 (1991)
BROADWAY NATIONAL BANK, Plaintiff,
v.
PROGRESSIVE CASUALTY INSURANCE COMPANY, Defendant.
No. 90 Civ. 6953 (MBM).
United States District Court, S.D. New York.
October 7, 1991.
*124 Peter J. Mastaglio, Cullen and Dykman, Garden City, N.Y., for plaintiff.
Bradford R. Carver, Hermann, Cahn & Schneider, Cleveland, Ohio, for defendant.
OPINION AND ORDER
MUKASEY, District Judge.
Plaintiff, Broadway National Bank ("Broadway") sues its insurer, the Progressive Casualty Insurance Company ("Progressive"), under a Financial Institution Bond (the "Bond"), for losses sustained when credit card sales drafts deposited by a merchant customer proved uncollectible. Progressive contends that recovery is barred by two exclusionary clauses in the Bond. The parties have cross-moved for summary judgment. For the reasons set forth below, plaintiff's motion is denied, and defendant's motion is granted.
I
In January 1989, Broadway entered into an Associate Agreement ("Agreement") with Chemical Bank, enabling Broadway to process credit card transactions for its merchant customers. Chemical is a member of MasterCard International Incorporated, the network of financial institutions that processes MasterCard and VISA credit card transactions. Under the Agreement, Chemical named Broadway an associate of MasterCard, thereby giving Broadway access to the network through Chemical. (Plaintiff's Rule 3(g) Statement ¶¶ 7-9)
As a member bank, Chemical plays a variety of roles. It issues credit cards, serves as a clearinghouse for credit card transactions, and recruits associate banks to serve as collection agents for credit card sales slips generated by local businesses. (Plaintiff's Rule 3(g) Statement ¶¶ 7-9) An associate bank, such as Broadway, enters into agreements with local merchants merchants agreements pursuant to which a merchant agrees to accept certain credit cards in satisfaction of a sale, and the associate agrees to redeem the sales slips either by crediting an account or paying the merchant by check in the amount of the sales slip less a standard discount. (Barton *125 Russell Merchant Agreement ¶¶ 1, 4; Plaintiff's Rule 3(g) Statement ¶ 13)
As set forth in a document entitled the Merchant Bank Program ("Program"), Broadway, as an associate of Chemical, was bound to follow specific procedures in dealing with its merchant customers. The Program specified that on a daily basis, merchants were to place sales slips in a sealed envelope, prepare a summary report, and attach an adding machine tape tallying the enclosed slips. The package would then be mailed or delivered to Broadway, which would reimburse the merchant. Under the terms of the Program, Broadway was entitled to check the merchant's calculations, but could not open the sealed envelope and verify that it contained the slips detailed on the summary report and adding machine tape. (Program pp. 9-12)
After receiving a package of slips from a merchant, it was Broadway's policy to make the amount credited to the merchant's account available for withdrawal after one business day. (Complaint in New York State Action Broadway National Bank v. Barton Russell Corp. ¶ 12) However, it was only after a lengthy procedure that Broadway would learn that some slips were invalid and could not be redeemed: Broadway would send the sealed envelope along with the attached tape and summary report to Chemical for processing. Upon receipt of the slips, Chemical would credit Broadway's maintenance account, and then forward the slips to the network. The network would charge the issuer of the card in the amount of the slip, and the issuer in turn would bill the cardholder, usually by a monthly statement. If the charge was contested, the issuer, on behalf of itself or its cardholder, would remit the charge through the network to Chemical. Without notifying Broadway, Chemical could then send the slip back through the network for reprocessing. If after two attempts at processing, an invalid charge slip was returned unpaid from the network to Chemical, Chemical would then charge back Broadway's service account. That process could take up to six months, and only when it was charged back would Broadway learn that a slip was invalid. Having credited the merchant's account upon receipt of the slips, Broadway would then be left to collect from the merchant in order to avoid a loss on the contested charge. (Cardone Aff. ¶¶ 12-18)
The delay in processing credit card sales slips presents unscrupulous merchants with an opportunity to abuse the system. That opportunity was seized by the officers of the Barton Russell Corporation ("Barton Russell"), an erstwhile merchant customer of Broadway. Barton Russell began its banking relationship with Broadway in November 1987, and began its credit card merchant relationship in January 1988. Ostensibly an art gallery, Barton Russell was in actuality a front for a male escort service. Its business, however, was not limited to the provision of escorts. Through the manipulation of card numbers and authorization codes, Barton Russell employees created numerous fraudulent sales slips which they deposited in the merchant account the corporation maintained at Broadway. Taking advantage of the long lag between the credit to the corporation's account at Broadway and Chemical's notification of Broadway that the slips were fraudulent, they then withdrew the funds before Broadway could act to protect its interests. (Cardone Aff. ¶¶ 19, 20) In its complaint, Broadway alleges that the withdrawals against the fraudulent receipts amounted to $196,065.25, and its loss, after the seizure of Barton Russell funds still on deposit, was $179,479.90.
This dispute arose when Broadway attempted to recover its losses under the Financial Institution Bond it had received from Progressive on July 15, 1988. Broadway notified Progressive of its claim, and a proof of loss was submitted on October 20, 1989. Progressive declined coverage, and this suit was filed on September 28, 1990. (Defendant's Rule 3(g) Statement ¶¶ 33-35) Plaintiff moved for summary judgment, arguing that under the Bond's clear and unambiguous terms it was entitled to recovery. Defendant cross-moved, asserting that under the circumstances of this case, the terms of the Bond exclude coverage of Broadway's claim.
*126 II
Defendant relies on two exclusionary clauses in the Bond to defeat Broadway's claim. The first excludes from coverage losses that result from the use of various types of credit and charge cards. Referred to as the "Credit Card Exclusion," this provision states:
This bond does not cover: loss resulting directly or indirectly from the use or purported use of credit, debit, charge, access, convenience, identification, or other cards (1) in obtaining credit or funds ... whether such cards were issued, or purport to have been issued, by the Insured or by any one other than the Insured.
(Bond § 2(k)) The second clause excludes losses that result from unpaid depository instruments. This clause, which is referred to by the parties as the "Uncollected Funds Exclusion," states:
This bond does not cover: loss resulting directly or indirectly from payments made or withdrawals from a depositor's account involving items of deposit which are not finally paid for any reason, including but not limited to Forgery or any other fraud.
(Bond § 2(o)) Progressive argues that both of the above clauses allow it to decline coverage. Broadway asserts that the clauses do not apply to its claim.
Under Federal Rule of Civil Procedure 56(c), a trial judge must grant summary judgment if the evidence demonstrates that "there is no genuine issue as to any material fact and [that] the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). "Summary judgment is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the federal rules as a whole, which are designed `to secure the just, speedy, and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ. p. 1).
That the parties have cross-moved for summary judgment does not necessarily mean that there is no material issue of fact to be tried. Home Ins. Co. v. Aetna Casualty & Surety Co., 528 F.2d 1388, 1390 (2d Cir.1976) (per curiam). "[C]ross motions for summary judgment do not warrant the granting of summary judgment unless the Court finds that `one of the moving parties is entitled to judgment as a matter of law upon facts that are not genuinely disputed.'" Bollenbach v. Board of Education, 659 F.Supp. 1450, 1456 (S.D.N.Y.1987) (quoting Frouge Corp. v. Chase Manhattan Bank, 426 F.Supp. 794, 796 (S.D.N.Y.1976)).
In contract actions, summary judgment is appropriate only where the language of the relevant agreement is unambiguous. If a contract is clear on its face, its proper construction is a matter of law. United States Naval Institute v. Charter Communications Inc., 875 F.2d 1044, 1048 (2d Cir.1989). Furthermore, extrinsic evidence is inadmissible to contradict an unambiguous contract.
Language whose meaning is otherwise plain is not ambiguous merely because the parties urge different interpretations in the litigation. The court should not find the language ambiguous on the basis of the interpretation urged by one party, where that interpretation would `strain the contract language beyond its reasonable and ordinary meaning.'
The parties' rights under an ambiguous contract should be fathomed from the terms expressed in the instrument itself rather than from extrinsic evidence as to terms that were not expressed or judicial views as to what terms might be preferable. In its efforts to preserve the parties' rights and the status quo, the court must be careful not to alter the terms of the agreement. "The parties having agreed upon their own terms and conditions, `the courts cannot change them and must not permit them to be violated or disregarded.'"
Metropolitan Life Ins. Co. v. RJR Nabisco Inc., 906 F.2d 884, 889 (2d Cir.1990) (quoting Breed v. Insurance Co. of North America, 46 N.Y.2d 351, 355, 413 N.Y.S.2d 352, 355, 385 N.E.2d 1280, 1282 (1978); *127 Bethlehem Steel Co. v. Turner Construction Co., 2 N.Y.2d 456, 459, 161 N.Y.S.2d 90, 93, 141 N.E.2d 590, 592-93 (1957); and Diversified Mortgage Investors v. U.S. Life Title and Trust Ins. Co. of New York, 544 F.2d 571, 575 (2d Cir.1976)) (citations omitted).
In their construction and interpretation, insurance contracts are treated like other business contracts. Hartol Products Corp. v. Prudential Ins. Co., 290 N.Y. 44, 47, 47 N.E.2d 687 (1943); Sullivan County Gas Service Inc. v. Phoenix Mut. Life Ins. Co., 111 A.D.2d 542, 489 N.Y.S.2d 415 (3d Dept.1985). Thus, where the terms of an insurance policy are unambiguous, they must be given their plain and ordinary meaning, and a court must refrain from rewriting the agreement. U.S. Fidelity & Guaranty Co. v. Annunziata, 67 N.Y.2d 229, 501 N.Y.S.2d 790, 791, 492 N.E.2d 1206, 1207 (1986); HS Equities, Inc. v. Hartford Accident & Indemnity Co., 609 F.2d 669, 673 (2nd Cir.1979). Under such circumstances, the question is one of law, and summary judgment is proper. In the words of Judge Weinfeld:
Contracts of insurance, like other contracts are to be construed to effectuate the parties' intent as expressed by the words the parties used, and if the terms of the contract are clear and unambiguous, the Court must enforce the plain, ordinary and common meaning of those terms.
IBM Poughkeepsie Employees Federal Credit Union v. Cumis Insurance Society, 590 F.Supp. 769, 772 (S.D.N.Y.1984) (granting summary judgment based on clear terms of insurance contract). Thus, the issue presented by these motions for summary judgment is whether the language contained in either or both of the clauses is "reasonably susceptible" to only one interpretation. See Cable Science Corp. v. Rochdale Village Inc., 920 F.2d 147, 151 (2d Cir.1990). Each clause will be considered in turn.
A. The Credit Card Exclusion
The Credit Card Exclusion is broad. On its face, the language "loss resulting directly or indirectly from the use or purported use of credit ... cards" appears to exclude recovery for any loss suffered by Broadway as a result of the use or misuse of credit cards. Both parties cite a standard form for financial institution bonds which states:
Unless employee dishonesty is involved, all losses resulting from the use of credit ... cards is excluded ... The language is clear and has resulted in no reported decisions.
Annotated Banker's Blanket Bond, First Supplement (American Bar Association 1983).
However, in the context of this case, the Credit Card Exclusion may be construed as susceptible to more than one interpretation. It is arguable that the clause may be unclear regarding schemes, such as that perpetrated by Barton Russell, whereby, rather than the actual credit cards, authorization codes and card numbers serve as the basis for fraud. The clause lends slight support to this view in that it speaks only of "credit cards" and not of account numbers or authorization codes. Ambiguity conceivably could arise from the reference only to "cards" and not to "card numbers" or a similar term, raising the question of whether use of card numbers is "directly or indirectly ... purported use of ... cards." To be sure however, it is at least arguable that the clause's exclusion of losses resulting "indirectly" from the "purported use" of credit cards, is enough to cover situations where card numbers and codes are used to commit fraud. Moreover, the standard form cited by both parties to explain the terms of the Bond, confirms that the language of the clause "address[es] the situation in which funds are obtained through the fraudulent use of the card number." Annotated Financial Institution Bond, Second Supplement (American Bar Association 1983).
Nevertheless, I hesitate to base a decision for the defendant on the Credit Card Exclusion for two reasons. First, in a motion for summary judgment on a contract, extrinsic evidence which may clarify the meaning of a clause, such as the standard form, is inadmissible for the purposes *128 of interpreting and applying a clause. Metropolitan Life, 906 F.2d at 889. Second, "[i]n New York, when an insurer seeks to disclaim liability through an exclusion clause in the policy the insurer must prove that the insured clearly is not covered by the policy. [citation of cases omitted]. Any ambiguities are to be resolved in favor of the insured." Marino v. New York Telephone Co., 944 F.2d 109, 112 (2d Cir. 1991). Given these rules, if there is even a possible ambiguity as to the applicability of the Credit Card Exclusion, summary judgment is problematic.
However, I need not and do not decide that issue. The alternative exclusionary clause relied upon by defendant, the Uncollected Funds Exclusion, is entirely unambiguous and excludes Broadway's claim. Thus, although the argument that the Card Exclusion is ambiguous seems far fetched, resolution of that issue is unnecessary.
B. The Uncollected Funds Exclusion
The Uncollected Funds Exclusion covers losses resulting from "items of deposit" to a customer's account which are ultimately unpaid. The sole dispute regarding this clause is whether "items of deposit" includes credit card sales slips. The clause admits of no other interpretation than that advocated by Progressive; Broadway's argument that "items of deposit" does not cover credit card slips is meritless.
In general, courts which have applied the Uncollected Funds Exclusion have found the clause as a whole "unambiguous," and have given the language its ordinary meaning. See Mitsui Mfrs. Bank v. Federal Insurance Co., 795 F.2d 827, 830 (9th Cir. 1986); Bradley Bank v. Hartford Accident & Indemnity Co., 737 F.2d 657, 660 (7th Cir.1984). Although no court has yet construed "items of deposit," like the other terms used in the clause, its meaning is plain. The ordinary and obvious meaning of the words "items of deposit" is any financial instruments accepted by a bank for deposit.
That the term "items of deposit" is unambiguous is evident not only from the clarity of the language, but also from the accepted practice of the banking industry. The general practice for banks is to accept credit card sales slips for deposit by a merchant. As part of the agreement with an associate bank, most merchants maintain a regular depository account with the associate bank, to which all charges and credits arising from credit card transactions are entered. See Barkley Clark, The Law of Bank Deposits, Collections and Credit Cards ¶ 11.02[4][b] (1990). Moreover, Article 4 of the Uniform Commercial Code, which governs Bank Deposits and Collections, suggests that "items," as used in the banking industry generally, is a broad enough term to encompass credit card sales slips. The U.C.C. defines "items" to include "any instrument for the payment of money even though it is not negotiable but does not include money." N.Y. Uniform Commercial Code § 4-104(g) (McKinney 1991) (emphasis added). On its face, such a definition would include credit card slips. A recent decision from another jurisdiction, construing an identical provision, held that credit card slips are "items" within the cited U.C.C. provision. See First United Bank v. Philmont Corp., 533 So.2d 449 (Miss.1988).
Furthermore, in processing credit card transactions, Broadway treated credit card slips as "items of deposit." For instance, it is uncontested that Barton Russell maintained an account with Broadway which was credited when sales slips were redeemed. (Defendant's Rule 3(g) Statement ¶ 20; Complaint in New York State Action Broadway National Bank v. Barton Russell Corp. ¶ 13). This was a regular practice with merchant customers. The pre-printed form used for merchant agreements included a provision which stated that, if the merchant chose, Broadway would reimburse for sales slips by "credit to the Merchant's checking account with the Bank." (Merchant Agreement § 4) Moreover, Broadway regularly exchanged the credit card slips it had redeemed for credit to an account maintained at Chemical. (Cardone Aff. ¶ 8) Thus, at Broadway, credit card slips were used regularly as the basis for crediting a merchant's account *129 and for deposit to the Bank's own account; in other words, they were accepted and used by Broadway as instruments for deposit.
Broadway's attempts to obfuscate the term only serve to emphasize its clarity. Broadway argues first that "items of deposit" includes checks only, and therefore the policy would not cover losses from the fraudulent use of credit card drafts. However, the exclusion applies to "items of deposit" and is not limited to checks. Instead, use of the plural "items," in lieu of naming any specific kind of instrument, necessarily means that more than one type of depository instrument is covered. Limiting application of the exclusion to a single instrument, as advocated by Broadway, runs counter to the plain language contained in the clause and results instead in a strained construction.
In addition to checks which are deposited, the plain meaning of "items of deposit" also includes credit card slips which are deposited. Ironically, this point is clearly demonstrated by the flaws in one of Broadway's arguments. Broadway asserts that because the Merchant Agreement does not require the merchant to maintain an account with the Bank and allows the slips to be exchanged for a check, the slips cannot be considered "items of deposit." In making this argument, Broadway's Memorandum of Law asks rhetorically: "If no account was required, into what was the sales slip or item of deposit to be deposited?" (Plaintiff's Memorandum of Law p. 10). Presumably, the argument is that because the Merchant Agreement did not require that credit card drafts be deposited, those instruments could not possibly be "items of deposit" even when they are deposited. The necessary implication is that "items of deposit" includes only those instruments which must be deposited. However, that the Barton Russell Merchant Agreement did not require the deposit of credit card slips is irrelevant. This is evident when one considers plaintiff's prototypical item of deposit the check. Checks, like the credit card slips here in question, may be deposited in a bank, but they may also be exchanged for cash, goods or another check. Nevertheless, plaintiff asserts that checks are unquestionably "items of deposit" while credit card slips could not possibly be "items of deposit" because their deposit was not required. However, even as to a check, which plaintiff insists must be an "item of deposit," it is not the nature of the instrument itself but rather how it is used, i.e. whether it is in fact deposited, that determines whether it is an "item of deposit". Following the reasoning inherent in plaintiff's own check example, credit card slips are "items of deposit" when they are deposited by the merchant and received for deposit by the bank. Cf. Bay Area Bank v. Fidelity & Deposit Co., 629 F.Supp. 693 (N.D.Cal.1986) (where both the court and the parties assumed "items of deposit" included credit card slips).
By its plain and unambiguous terms the Uncollected Funds Exclusion applies to this case, and bars recovery by plaintiff. Plaintiff's motion for summary judgment is denied; defendant's motion is granted, and the complaint is dismissed.
SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1555293/ | 775 F.Supp. 849 (1991)
QUALITY AUTOMOTIVE COMPANY
v.
SIGNET BANK/MARYLAND.
Civ. No. HM-90-1213.
United States District Court, D. Maryland.
September 9, 1991.
*850 David Machanic, Washington, D.C., for plaintiff.
Steven K. Fedder, Baltimore, Md., for defendant.
MEMORANDUM AND ORDER
HERBERT F. MURRAY, Senior District Judge.
On May 2, 1990, plaintiff filed this suit against Signet Bank/Maryland, asserting breach of an obligation of good faith. Pending before this Court is defendant's Motion to Dismiss for failure to state a claim for which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.[1]
*851 Plaintiff, Quality Automotive Company ("QAC") is the assignee of the claim of Parts Pro Distributing, Inc. ("Parts Pro"). Parts Pro, formed in August of 1985 by the merger of two local warehouse automobile parts distributors, entered into a loan and security agreement with Union Trust Company of Maryland which is presently known as Signet Bank/Maryland. The purpose of the loan was to provide Parts Pro with up to $2,000,000 credit to be used for working capital, debt payment, and for financing the sale of automobile parts on the automotive repair market. Plaintiff, in its complaint, asserts that the defendant breached a duty of good faith with respect to the loan and security contract when it terminated Parts Pro's line of credit and stopped replenishing Parts Pro's operating account. Defendant contends, among other things, that not only was there no breach of an obligation of good faith but also that an implied obligation of good faith in the performance of contracts cannot serve as a basis for an independent cause of action.
Is There a Cause of Action for Breach of Good Faith in Maryland?
Defendant, in support of its assertion that a claim for breach of good faith is not grounds for an independent cause of action, relies on Management Assistance, Inc. v. Computer Dimensions, Inc., 546 F.Supp. 666 (N.D.Ga.1982) aff'd, 747 F.2d 708 (11th Cir.1984). The court in Management Assistance held that an implied obligation of good faith in the performance of contracts, as derived from Georgia's UCC Sec. 1-203, cannot serve as the basis for an independent cause of action. Id. at 677. Defendant urges this Court to follow Management Assistance and rule that breach of good faith cannot be the sole basis for a cause of action under Maryland's UCC provisions.
The court in Management Assistance based its findings on Chandler v. Hunter, 340 So.2d 818 (Ala.Civ.App.1976), which stated that the "[f]ailure to act in good faith in the performance or enforcement of contracts or duties under [Alabama's UCC] does not state a claim for which relief may be granted in Alabama." Chandler v. Hunter, 340 So.2d at 821. However both the Sixth Circuit and First Circuit have chosen a different direction and concluded that a claim for breach of good faith is sufficient to independently sustain a cause of action.
In Reid v. Key Bank of Southern Maine, Inc., 821 F.2d 9 (1st Cir.1987), the Court of Appeals for the First Circuit stated:
[W]e reject the applicability of Chandler and the cases based on it ... [A] determination that no such cause of action exists would conflict with the clear meaning of section 1-203 of the UCC.
Id. at 13. The court found that the Uniform Commercial Code as adopted by Maine, 4 Me.Rev.Stat.Ann. tit. 11, Sec. 1-203 (1964), imposes an obligation of good faith in every contract with regard to the contract's performance and enforcement. "That this obligation carries with it a cause of action seems clear from another provision of the Code [Sec. 1-106]: Any right or obligation declared by this title is enforceable by action unless the provision declaring it specifies a different and limited effect." Id. at 12.
In K.M.C. Co. v. Irving Trust Co., 757 F.2d 752 (6th Cir.1985), the Sixth Circuit examined a claim for breach of good faith with regard to a secured line of credit which provided the defendant bank with a first lien security interest in the plaintiff's accounts receivable, much like the agreement in the present case. The court held that there is a duty of good faith in every contractual relation that may require giving adequate notice before refusing to further advance funds:
[An] obligation to act in good faith would require a period of notice to K.M.C. to allow it reasonable opportunity to seek alternative financing, absent valid business reasons precluding Irving from doing so.
Id. at 759. The adequacy of good faith notice however would be a factual matter to be determined by the jury or the court acting as fact finder.
This Court has found no relevant precedent coming out of Maryland or the Fourth *852 Circuit concerning breach of good faith as an independent cause of action. However, the Court finds the reasoning of the First and Sixth Circuits on this issue to be sound. Following the analysis of the First and Sixth Circuits, this Court holds that under Maryland's UCC Sec. 1-203 in conjunction with UCC Sec. 1-106, there is an independent cause of action for breach of good faith with respect to the performance and enforcement of a contract.
Does the Complaint Make out a Claim?
In this case defendant, Signet Bank/Maryland, had a first lien security interest in Parts Pro's accounts receivable. Defendant felt that its security interest was jeopardized when Parts Pro purchased a controlling interest in RPS Products, Inc., an auto parts retailer financed by Citicorp Industrial Credit, Inc. because Citicorp held as its security a first lien on RPS's inventory and accounts receivable. Defendant, allegedly fearful of losing its security interest, subsequently chose to terminate the loan and security agreement that it had with plaintiff. Defendant claims that the termination was not done in an unfair, anti-competitive manner but rather it was done in good faith and with sufficient notice.
If plaintiff has asserted in its complaint that Signet Bank/Maryland breached its Maryland UCC Sec. 1-203 obligation to exercise good faith in the operation and termination of its contract with Parts Pro by not supplying Parts Pro with adequate notice and a reasonable opportunity to find alternative financing, then plaintiff should have a right to go forth with its claim for breach of good faith as an independent cause of action. In its complaint plaintiff does allege such facts.
Plaintiff alleges that defendant threatened to liquidate Parts Pro on several occasions because Parts Pro rejected a refinancing plan offered by defendant after the purchasing of RPS, and that defendant, without sufficient notice, failed to fund Parts Pro's operating accounts, consequently causing checks that Parts Pro had issued to be dishonored. (Complaint at 22.) Plaintiff further claims that defendant failed to extend temporary financing under its loan and security agreement to at least cover checks that had been issued. In addition, plaintiff contends that defendant failed to allow reasonable time for Parts Pro to complete a refinancing package with existing lenders that would have paid off Parts Pro's entire debt to defendant and allowed for a fair termination of the loan agreement. (Complaint at 20.) Defendant contends that more than sufficient notice was given.
Unlike a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, which goes to the merit of the claim and examines whether there is a genuine issue of material fact, a motion to dismiss under Rule 12(b)(6) is designed to test only whether a claim for which relief might be granted has been alleged within the complaint. "Thus, on a motion under Rule 12(b)(6), the court's inquiry essentially is limited to the content of the complaint." See 5A C. Wright & A. Miller, Federal Practice and Procedure Sec. 1356, at 296 (1990). Since QAC's complaint has sufficiently alleged facts upon which a claim for breach of good faith could be brought, the complaint cannot be dismissed simply because the defendant has asserted that the facts with which the plaintiff has brought suit do not adequately support plaintiff's contentions.
The test used for determining if there has been a breach of good faith is primarily a subjective one, or a question of fact. Reid v. Key Bank of Southern Maine, Inc., 821 F.2d 9, 15 (1st Cir.1987). Generally, one has not acted in breach of good faith when one has acted honestly. Id. Plaintiff's allegations in the complaint sufficiently raise a question as to the defendant's honesty and good faith with regard to the loan and security agreement and satisfy today's liberal requirements for stating a claim upon which relief may be granted.
Defendant contends that plaintiff cannot sufficiently allege bad faith because plaintiff has failed to show that Parts Pro was not in default under Sec. 5.1 of the loan and security agreement. Within this section are sixteen events constituting default allowing *853 the bank to terminate the loan agreement. However, the defendant still has a duty to exercise good faith with regard to notice when deciding to terminate the loan and security agreement. Id. Plaintiff alleges that defendant did not act in good faith. Thus, the complaint will not be dismissed for failure to state a claim.
Exemplary or Punitive Damages
Defendant next contends that plaintiff's request for exemplary damages should not be allowed because exemplary damages cannot be awarded for breach of contract actions. The Court of Appeals for the Fourth Circuit, in Saval v. BL Ltd., 710 F.2d 1027 (4th Cir.1983), stated that "[u]nder Maryland law, no matter what the theory of recovery, punitive damages cannot be recovered absent malice, actual or implied." Id. at 1033. Plaintiff claims that defendant's breach was done with malice sufficient to warrant the awarding of exemplary damages. Plaintiff feels that here the malicious breach of good faith warrants punitive damages because it arose out of not only a contractual relationship but also the defendant's tortious violation of the applicable statutory provisions of the UCC.
The duty to act in good faith here is one imposed by law under UCC Sec. 1-203. "When the duty to exercise good faith is imposed by law rather than the contract itself, the breach of that duty is tortious. Therefore, punitive damages are recoverable." First Nat'l Bank in Libby v. Twombly, 689 P.2d 1226, 1230 (1984).
When a tort is alleged to arise out of a contractual relationship, actual malice is the essential prerequisite to the recovery of punitive damages. H & R Block, Inc. v. Testerman, 275 Md. 36, 47, 338 A.2d 48, 54 (1975). The test for determining actual malice has been set out in Drug Fair of Maryland, Inc. v. Smith, 263 Md. 341, 283 A.2d 392 (1971).
To find actual malice requires finding the performance of an unlawful act, intentionally or wantonly, without legal justification or excuse but with an evil or rancorous motive influenced by hate; the purpose being to deliberately and wilfully injure the plaintiff.
Id. at 352. To make out a claim for punitive damages in Maryland, plaintiffs must allege a distinct and recognizable tort, regardless of whether that tort arises out of, precedes, or is intertwined with the contractual relationship. Brand Iron, Inc. v. Koehring Co., 595 F.Supp. 1037, 1040 (1984). Further, plaintiff must show that the tort was committed with an evil or rancorous motive with the intent to injure the plaintiff. Id.
In ruling on this motion to dismiss exemplary damages pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court once again must examine the complaint on its face. See 5A C. Wright & A. Miller, Federal Practice and Procedure Sec. 1356 (1990). Plaintiff states in Count I of its complaint that "[t]he acts of defendant complained of herein were done with the intention of injuring Parts Pro in the conduct of its business and done in retribution for Parts Pro having done business with a competitor bank, and were inflicted with actual malice, oppression, and a reckless and wanton disregard of the rights of Parts Pro." (Complaint P. 24.) Plaintiff has alleged facts which are sufficient to support an allegation of actual malice. These allegations together with the complaint that defendant tortiously breached its duty of good faith, are on their face sufficient to sustain a claim for punitive damages.
Defendant also argues that Sec. 1-106(1) does not allow for punitive damages unless specifically called for in the particular Code section. Section 1-106 provides that "neither consequential or special nor penal damages may be had except as specifically provided in titles 1 through 10 of this article or by other rule of law." Md.Com.Law Code Ann. Sec. 1-106(1) (1975). UCC Sec. 1-203 does not provide for punitive damages. However, plaintiff is not asking for punitive damages under a pure breach of contract action. If plaintiff were suing merely for pure breach of contract under 1-203, "Obligation of Good Faith", punitive damages would not be available. Plaintiff however, is seeking punitive damages for defendant's alleged tortious breach of contract *854 and has sufficiently alleged malice as required by Drug Fair of Maryland, supra. Therefore plaintiff's claim for punitive damages will not be dismissed.
Private Cause of Action
Defendant also alleges in its 12(b)(6) motion that plaintiff does not have standing to bring a private cause of action under 5-807 of the Financial Institutions Article of the Annotated Code of Maryland. To determine whether plaintiff has standing to assert a private right of action, this Court must apply the three part test set forth in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), and applied by the Fourth Circuit in Newcome v. Esrey, 862 F.2d 1099 (4th Cir.1988). The test is as follows:
First, is the plaintiff one of the class for whose especial benefit the statute was enacted, that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?
Newcome v. Esrey, at 1103 (citing Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975)).
The first question is whether the plaintiff is in the class for whose benefit Sec. 5-807 of the Financial Institutions Article of the Annotated Code of Maryland was enacted. Id. Defendant, in its motion, concedes that plaintiff satisfies this factor.
The second question is whether there is any indication of a legislative intent, explicit or implicit, either to create a private remedy or to deny one. Id. Defendant contends that since Sec. 5-807 of the statute provides for a criminal punishment, there should be no civil remedy available. However, this Court disagrees with defendant. Plaintiff, as a person injured by a violation of Sec. 5-807, has not been precluded by the statute from seeking a civil remedy for damages.
Defendant points out that Sec. 9-912 of the Financial Institutions Article explicitly provides for a private cause of action while 5-807 does not. Defendant argues that since 9-912(g) provides the possibility for civil actions and 5-807 does not, the legislature clearly intended that no civil remedies would be available under 5-807. First, the Court notes that 9-912 deals with violations by directors or officers of savings and loan associations, a wholly different subject matter than 5-807, which is about unfair or anticompetitive practices of banking institutions. Moreover, section 9-912(g) merely provides that the civil penalties in that provision should not be construed to preclude private civil actions. The legislature gives no indication that such a private right of action should be precluded in Section 5-807, which explicitly provides criminal penalties but no civil fine. In this case, the legislative intent as to a private cause of action under 5-807 is not evident from the statute or its history.
The third and final factor of this test is whether it is consistent with the underlying purpose of the legislative scheme to imply a private remedy for the plaintiff. Id. This Court feels that a private remedy under Sec. 5-807 is consistent with the purpose of the legislative scheme. Section 5-807 was enacted to prevent anticompetitive and unfair practices by banking institutions. The criminal prosecution is simply one possible remedy to the situation. Allowing a private cause of action under 5-807 is consistent with the legislative scheme and provides a remedy directly to the parties who are injured by violations of the statute. In summary, plaintiff is in the class of persons meant to be protected by 5-807, there is no evident legislative intent as to private remedies under Sec. 5-807, and allowing such a private remedy is consistent with the underlying legislative scheme. Thus, this Court holds, under the Cort v. Ash analysis, that Sec. 5-807 implicitly allows for a civil remedy.
This Court finds that the plaintiff's complaint is sufficient to withstand defendant's motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Accordingly, it is this 9th day of September, 1991, by the United States District Court for the District of Maryland,
*855 ORDERED:
(1) that the defendant's Motion to Dismiss, be, and the same hereby is, Denied; and
(2) that defendant shall file an answer to the complaint within twenty (20) days from the date of this Memorandum and Order.
NOTES
[1] Defendant has attached certain exhibits to the motion to dismiss. Under Rule 12(b) of the Federal Rules of Civil Procedure, if such exhibits "are presented to and not excluded by the court, the motion shall be treated as one for summary judgment." However, in this instance, the Court will exclude the exhibits and analyze the motion under Rule 12(b)(6). The Court has not considered the exhibits in ruling on this motion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1502557/ | 28 F.2d 1 (1928)
INTERNATIONAL INDEMNITY CO.
v.
LEHMAN et al.[*]
No. 3920.
Circuit Court of Appeals, Seventh Circuit.
April 3, 1928.
Rehearing Denied October 2, 1928.
Robert Golding, of Chicago, Ill., for plaintiff in error.
H. A. Sawyer and David A. Sondel, both of Milwaukee, Wis., for defendants in error.
Before EVANS, PAGE, and ANDERSON, Circuit Judges.
EVAN A. EVANS, Circuit Judge.
The parties will be described as they appeared in the District Court.
Plaintiff sued to recover upon a contract of guaranty executed by the defendants. *2 Defendants interposed an answer and also filed a counterclaim, wherein they sought damages for fraud alleged to have been practiced upon them by plaintiff and one S. Upon the trial, the court directed a verdict in defendants' favor as to plaintiff's cause of action and submitted to the jury the issues presented by the counterclaim. The jury rendered a verdict in favor of defendants for $35,000, and judgment followed the verdict. The only errors here assigned deal with the rulings of the court respecting the issues presented by the counterclaim. Plaintiff does not question the correctness of the ruling which directed a verdict in defendants' favor on plaintiff's cause of action.
Plaintiff assails the rulings on the admission of evidence and on its motion for a directed verdict as to defendants' counterclaim.
The controversy arose out of a California real estate deal.
Defendants, residents of Wisconsin, owned a valuable tract of land in California, reasonably worth $50,000. One S., a resident of California, owned a larger area of land, but almost worthless, which he offered to defendants' California representative, Smith, in trade for defendants' land. Smith made an examination of the land, being shown by S. Instead of showing his land, S. showed another tract reasonably worth $50,000. S. also referred Smith to plaintiff, saying that he had recently borrowed $10,000 on the land, and that plaintiff had made a careful and conservative appraisal before making the loan. Upon inquiry, plaintiff promptly showed Smith its appraisal; the tract being appraised at $50,000.
The trade was thereupon made, each tract being conveyed subject to a $10,000 mortgage. Defendants subsequently guaranteed the S. note and mortgage. Plaintiff subsequently foreclosed its mortgage upon the S. tract and realized about $6,000. It was to enforce defendants' liability for the balance of the $10,000 that the present action was instituted. Defendants not only disputed liability on the guaranty, but through their counterclaim charged plaintiff with being in a successful conspiracy with S. to defraud them to their great damage.
There was ample testimony showing that S. defrauded defendants. He showed the wrong land. He represented that his property had been conservatively appraised by an insurance company for loan purposes at $50,000. It was not worth a sum equal to the mortgage that stood against it.
With almost equal clarity it appears that the officers of plaintiff participated in the fraud. The size of the loan, the circumstances under which it was made, the making of a false and fraudulent land appraisal, and its use to help S. make his sale, all point to this conclusion.
Plaintiff's guilty participation in the fraud is also established by still more damaging evidence. It appears that S. wanted to borrow $5,000 upon his property. Plaintiff loaned him $10,000, but required him to take $5,000 of it in stock in plaintiff's company. The officers took a 20 per cent. commission for the sale of the stock. To cover their cupidity they caused an appraisal to be made of $50,000. From this testimony the conclusion that a prima facie case of conspiracy had been established, was unavoidable.
It was at this point that defendants offered the testimony of Smith respecting an admission made to him by S. Smith attributed to S. this language: "He said Mr. Blackstock [the president of plaintiff company] was a friend of his and he wanted them to put on a big appraisement of it [the land], so that he could dispose of it and he said that was what they did."
This testimony was cumulative. It tended to confirm the conclusion which the other testimony established.
Plaintiff, however, objected to its reception, and now insists that prejudicial error was committed in receiving it. Plaintiff's objection may be thus stated:
(a) The evidence, aside from this statement, failed to disclose a conspiracy to which plaintiff was a party, and until such conspiracy is thus shown the act or statement of one conspirator is not admissible against other alleged conspirators.
(b) If the court does not accept position (a), then it is contended that the conspiracy was ended when the statement objected to was made.
(c) The statement was inadmissible under any circumstances, because it was not in furtherance of the conspiracy which is charged.
(a) In view of what has heretofore been said, it is unnecessary to review the evidence to show why we reject the first ground of the objection. The evidence aside from this statement made out a prima facie case of conspiracy, to which plaintiff was a party.
(b) No needful purpose would be served in reciting the testimony which showed, or tended to show, that the conspiracy was not at an end when this statement was made. It may be true that the fraud had been completed, also that defendants had learned of *3 it. But the fraud and the conspiracy to defraud were different enterprises. The fraud may have been past history, but the conspiracy to defraud still be in esse. The conspiracy doubtless contemplated the fraud. But it contemplated something more. It contemplated a fraudulent sale by S. and the collection of the $10,000 note by plaintiff from the party defrauded. The collection of this money was necessarily subsequent to the fraudulent sale. For the assumption of the debt by a responsible party could only follow a sale of the land to said party. When the aforesaid statement was made, the conspirators were still pursuing the object of the conspiracy, to wit, the collection of the $10,000 from the responsible party. This being so, we cannot say as a matter of law that the conspiracy terminated prior to the death of S.
(c) We might terminate the discussion relative to the admissibility of this evidence and uphold the ruling upon the authority of American Fur Co. v. U. S., 2 Pet. 358, 7 L. Ed. 450; Nudd v. Burrows, 91 U.S. 426, 438, 23 L. Ed. 286; Wiborg v. U. S., 163 U.S. 632, 16 S. Ct. 1127, 41 L. Ed. 289; Delaney v. U. S., 263 U.S. 590, 44 S. Ct. 206, 68 L. Ed. 462. But there are so many decisions that have limited the admissible acts or statements of a co-conspirator to such as are done "in furtherance of the conspiracy," or "in furtherance of the common design," or "in furtherance of the common object," or "in furtherance of the common purpose," as to justify a consideration of the meaning of these expressions.
Some courts have held the declarations of one conspirator admissible when they "formed part of the res gestæ," while still others have admitted such declarations when made "during the progress, and in the prosecution of, the joint undertaking, or accompanying and explaining acts done in furtherance thereof." Jones, Comm. on Evidence, § 943.
In Connecticut Mutual Life Insurance Co. v. Hillmon, 188 U.S. 208, 215, 23 S. Ct. 294, 47 L. Ed. 446, the court was considering the admissibility of the evidence of a co-conspirator. Suit was upon an insurance policy. Defendant denied the death of the insured and charged various individuals with conspiring to defraud it out of a large sum of money by reporting his death when they knew he was alive. The trial court refused to receive the testimony of certain witnesses who would have testified as to conversations had with certain of the conspirators other than Hillmon, the insured.
One witness, Crew, would have testified that he was acquainted with Baldwin, and had several notes for collection against him, two of which were secured by a mortgage upon which he was contemplating foreclosure. Baldwin told him that a part of the money represented by his indebtedness had been furnished to insure the life of Hillmon, and that he had arranged for a portion of the insurance on the life of Hillmon, and that as soon as he could get it he would be able to straighten up all his affairs. The witness Carr would have testified that he and Baldwin had been out buying live stock, and that Baldwin stated "he was under `brogue' with John W. Hillmon, and he said that he and Hillmon had a scheme under `brogue,' and he said that if it worked out all right he was all right." In a literal sense, it could hardly be said that this testimony was in furtherance of the conspiracy. The court, however, held that such testimony should have been received. It said:
"These questions and declarations of Baldwin to the four witnesses above stated were made either just before or just after the policy was taken out. They were not so much narratives of what had taken place as of the purpose Baldwin had in view, and we know of no substantial reason why they do not fall within the general rule, stated by Greenleaf (1 Greenleaf on Ev. § 111), that every act and declaration of each member of the conspiracy, in pursuance of the original concerted plan, and with reference to the common object, is, in contemplation of law, the act and declaration of them all, and is therefore original evidence against each of them. The conspiracy then existed and was still pending."
In the late case of Delaney v. U. S., 263 U.S. 586, 590, 44 S. Ct. 206, 207 (68 L. Ed. 462), the court discusses the same subject.
"The only exception, however, was to testimony given by one of the conspirators of what another one of the conspirators (the latter being dead) had told him, during the progress of the conspiracy. We think the testimony was competent and within the ruling of the cases [citing cases]. And it has been said that the extent to which evidence of that kind is admissible is much in the discretion of the trial judge. * * * We do not think that the discretion was abused in the present case."
We have examined the testimony in the Delaney Case to ascertain what the witness said to which objection was made. It appears that a co-conspirator stated: "He told me that we could sell whisky, that it was all right, that Mr. G. had talked with Mr. D. *4 (the prohibition director, defendant herein) and that we could go ahead and sell this whisky."
In Wiborg v. U. S., 163 U.S. 632, 657, 658, 16 S. Ct. 1127, 1137 (41 L. Ed. 289), the court said, speaking of the charge of the court to the jury which was as follows:
"If these men were in combination to do an unlawful act, what was said by any of them at the time in carrying out their purpose was evidence against them all as to the nature of the explanation."
Commenting upon this charge, the court said:
"The declarations must be made in furtherance of the common object, or must constitute a part of the res gestæ of acts done in such furtherance. Assuming a secret combination between the party and the captain * * * had been proven, then, on the question whether such combination was lawful or not, the motive and intention, declarations of those engaged in it explanatory of acts done in furtherance of its object came within * * * the discretion of the trial court, and we do not consider that that discretion was abused in this instance."
In Marron v. U. S. (C. C. A.) 8 F.(2d) 251, 257, the court says:
"It is elementary that, where there is proof of a conspiracy, the act or declaration of one of the parties thereto in reference to the common object may be given in evidence against the others."
The rule we deduce from these cases is that an admission of one conspirator, if made during the life of the conspiracy, is admissible against a joint conspirator, when it relevantly relates to and is "in furtherance of the conspiracy." Construing the expression "in furtherance of the conspiracy" reference is not to the admission as such, but rather to the act concerning which the admission is made; that is to say, if the act or declaration, concerning which the admission or declaration is made, be in furtherance of the conspiracy, then it may be said that the admission is in furtherance of the conspiracy.
There is another reason why this judgment should not be reversed because of the admission of this evidence. We think we are justified in saying the evidence objected to was not prejudicial. Prior to the propounding of the objectionable question, the witness Smith had testified to the existence of the facts heretofore stated. In other words, it was shown that S. showed defendants' representative the wrong land, that the land actually conveyed was worth but a small fraction of the land shown, that a fraudulent appraisal had been made by plaintiff, and that plaintiff had made an excessive loan to S., only a part of the proceeds of which passed to S.
Referring to the fraudulent and over appraisal of the land by plaintiff, Smith says he asked S., "What did they do that for?" It was to this question that objection was made and answer given. The witness stated, "He said Mr. Blackstock was a friend of his, and he wanted them to put on a big appraisal on it, so that he could dispose of it, and he said that was what they did. I told him that was not the way respectable people generally did business."
The answer was harmless, because it stated the obvious. No other deduction could have been made by court or jury than that which the witness attributed to S.
Convinced as we are that the evidence, aside from this testimony objected to, presented a jury question respecting the existence of the conspiracy, and that the conspiracy was in existence at the time the statements were made, we conclude the court properly admitted this evidence.
The judgment is affirmed.
PAGE, Circuit Judge (concurring).
The authorities cited do not support the court's rulings on the Smith testimony as to the S. admissions. But, on the whole case, I deem the error in admitting it harmless.
NOTES
[*] Certiorari denied by Supreme Court 49 S. Ct. 83, 73 L. Ed. ___. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/316301/ | 490 F.2d 233
UNITED STATES of America, Plaintiff-Appellee,v.Frank J. GILL and James Fahey, Defendants-Appellants.
Nos. 72-1689, 72-1690.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 14, 1973.Decided Dec. 28, 1973.
Anna R. Lavin, John J. Muldoon, Julius Lucius Echeles, Chicago, Ill., for defendants-appellants.
James R. Thompson, U.S. Atty., William T. Huyck, Asst. U.S. Atty., Chicago, Ill., Sidney M. Glazer, Robert J. Vedatsky, Attys., Dept. of Justice, Washington, D.C., for plaintiff-appellee.
Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and KILEY, Circuit Judge.
SWYGERT, Chief Judge.
1
Defendants Frank J. Gill and James Fahey appeal from their convictions of extortion and perjury, having been found guilty of these crimes by a jury. Gill was convicted of extortion in violation of the Hobbs Act, 18 U.S.C. 1951, and of making a false material declaration before the grand jury in violation of 18 U.S.C. 1623. Fahey was also convicted for the same violations. Gill received two four-year concurrent sentences and Fahey received two three-year concurrent sentences.
2
The evidence viewed most favorable to the Government establishes the following. Gill was a lieutenant and Fahey a sergeant with the Chicago Police Department. Stojan Kovacevic was the licensee of a combination tavern and liquor store called the Chicago-Oak Liquors. His brother, Boris, was a bartender there. Sometime in early July 1971, Chicago police officer Reddon entered the liquor store and told Kovacevic that he had sold beer to a minor. Kovacevic could not recall the sale so Officer Reddon left the store and returned shortly with the minor to whom the beer had been sold. After a conversation between Kovacevic and Reddon, Reddon left with the minor.
3
A short time later Lieutenant Gill and Sergeant Fahey entered the liquor store. Gill told Kovacevic that he had sold liquor to a minor. Kovacevic said he could not recall this and suggested that the officers search the minor for another identification card. Gill and Fahey then left and returned shortly and told Kovacevic that they did not find any other identification on the minor. Kovacevic said that he still did not believe it. Gill asked him what he was going to do; Kovacevic replied that he did not know. Gill then said that he would have to appear before the Liquor Commissioner. Kovacevic asked if something could be done; Gill asked what he meant. Kovacevic then offered Gill $150, but Gill countered with a demand for $500. They finally agreed on $300, Kovacevic told his brother, Boris, that he was giving the money because he feared the loss of his license as well as his business.
4
Constantine (Dino) Sanichas was in the tavern during the time in question and saw Fahey, with whom he was acquainted. Sanichas approached Fahey and asked what was happening. Fahey said that the owners were caught selling liquor to minors and asked Sanichas if he knew the owners. Sanichas said that he did. Fahey then asked Sanichas to talk to them and explain that 'it would be $500 for the owners to be given a pass, excused.' After Fahey left, Sanichas spoke with Boris and told him that the police officer wanted $500; Boris said that he couldn't pay it. Sanichas then suggested $300, to which he agreed. After Fahey had returned to the tavern, Sanichas told him, 'He's willing to pay $300, to give $300 for the pass, so he won't be arrested.' Fahey then told Sanichas to get the money and meet him on the corner. Fahey left. Sanichas told Boris that Fahey would accept $300, whereupon Boris produced the $300. Sanichas left the bar, met Fahey on the prearranged corner, and gave him the $300. About four to five weeks later Fahey met Sanichas and gave him $40.
5
Both Gill and Fahey were called before the grand jury. Gill denied asking the owner or anyone else for money when he was in the Chicago-Oak Liquors. Fahey denied receiving money from Sanichas.
6
Subsequently, they were jointly indicted in Court I for extortion. Gill was charged in Count II and Fahey in Count III for false declarations to the grand jury.
7
* The first contention made by the defendants is that the commerce affected by the extortion was not of an interstate nature. They argue that there was no evidence that the beverages sold to the tavern and liquor store came from a distributor or manufacturer from outside of Illinois, despite a stipulation that the beverages were manufactured in a state other than Illinois. It is maintained that the beverages, citing Brown v. Houston, 114 U.S. 622, 5 S.Ct. 1091, 29 L.Ed. 257 (1885), were no longer in interstate commerce, having come to rest at the distributor's warehouse in Chicago before they were resold to Chicago-Oak Liquors.
8
The fallacy in the argument is that the Hobbs Act not only forbids extortion which interferes with interstate commerce but also extortion which affects interstate commerce. Congress' power to regulate interstate commerce is very broad. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 253-258, 85 S.Ct. 348, 13 L.Ed.2d 258 (1946); Wickard v. Filburn,317 U.S. 111, 118-129, 63 S.Ct. 82, 87 L.Ed. 122 (1942).
9
The defendants make the alternative argument that the extortion of $300 from the tavern owner had, to say the least, a de minimis effect on commerce. Stated differently, they say it is unreasonable to infer that the owner's depletion of funds to the extent of $300 could have affected his ability to transact business, including the purchase of liquor from out of the state. An identical argument was made in the recent case of United States v. DeMet, 486 F.2d 816 (7th Cir., 1973). There this court, speaking through Judge Fairchild, rejected the argument:1
10
Although King's business was primarily local, depletion of King's assets by the goods and money extorted, or the cessation of his business if he did not yield and his fears were realized, would tend to reduce the demand for and amount of beer and liquor moving into Illinois. The effect on interstate commerce would exist, though small by most standards, and only indirectly caused by defendant's acts.
11
Section 1951 clearly contemplates a full application of the commerce power. It proscribes extortion which 'in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce . . ..'
12
Because Congress has seen fit to exercise its full power under the commerce clause, extortionate conduct having any arguably de minimis effect on commerce may nevertheless be punished. At pp. 821-822.
13
Fahey raises the additional issue that the Twenty-first Amendment has precluded the enforcement of the Hobbs Act in this case since the amendment gave to the states the power to regulate traffic in intoxicants. Section 2 of the Twenty-first Amendment prohibits any state-restricted transporting or importing of liquor for use or delivery therein which crosses state lines. This state preemption in regulating liquor does not preclude the federal government from prohibiting extortion which affects interstate commerce under authority of the Commerce Clause.
II
14
Defendants next contend that the Government proved bribery and not extortion. They rely heavily on Stojan's testimony that he offered Gill $150 without any demand by the police officers. The offer of the $150 came after Gill had asked Stojan what he was going to do and told him that he would have to appear before the Liquor Commissioner. After Stojan offered $150, Gill said, 'No, I will take $500.' Fahey approached Sanichas and asked him to tell the owners that 'it would be $500 for the owners to be give a pass, excused.' The jurors could reasonably have inferred from the evidence that the money was obtained through fear of economic loss and that Stojan offered to pay the $300 because he reasonably feared that if he did not, he would be cited for liquor violations or lose his license. Extortion, not bribery, was proved. See United States v. DeMet, at p. 820.
15
Defendants argue that extortion and bribery are mutually exclusive crimes and rely primarily on United States v. Kubacki, 237 F.Supp. 638, 641-642 (E.D.Pa.1965), for this proposition. Since there is sufficient evidence for the jury to have found extortion, it is not necessary to deal with this argument.
III
16
Defendants allege that the trial judge failed to instruct on an essential element of the crime, namely, commerce. They say that the judge withdrew this element to be proved from the jury and made the determination himself. The defendants stipulated at trial that Stojan's distributors would testify that the liquor and beer they sold to him came from outside Illinois. The judge told the jurors that the defendants had agreed that the stipulated testimony proved that the beer and liquor came from out of state. Defendants, who never objected to the judge's statement and who never attempted to refute the stipulated testimony, argue on appeal that the judge improperly withdrew the question from the jury as to whether the liquor had been in interstate commerce. Counsel for Gill specifically approved and consel for Fahey did not object to the following instruction:
17
In reference to the requirements of the statute that commerce or the movement of any article or commodity in commerce be obstructed, delayed or affected you are hereby instructed that alcoholic beverages were shipped to various liquor distributors in Chicago, Illinois, from locations outside of the State of Illinois, and the Chicago-Oak Liquor distributors sold these alcoholic beverages to the Chicago-Oak Liquor Store in Chicago, Illinois.
18
It was not error for the judge to fail to define 'commerce' since the defendant had agreed that the liquor sold to Stojan had come from out of state. To define 'commerce' under 18 U.S.C. 1951(b)(3) as defendants now argue would be a meaningless instruction since the jury was not called upon to make any factual determination about whether the shipment of liquor was interstate commerce. The only factual question in this regard was whether the commerce to which they had stipulated was affected by the extortion. The instructions fully covered this element of the crime.
IV
19
Count I of the indictment charged Gill and Fahey jointly with a violation of the Hobbs Act; Count II charged Gill with making a false material declaration to the grand jury which investigated the extortion charge; Count III charged Fahey with a similar offense. Gill made a pretrial motion for severance under Rule 8(b) of the Federal Rules of Criminal Procedure.2 The motion also mentioned Rule 14, Fed.R.Crim.P.3 The motion read in part, 'The defendant Gill consents to a trial of the charges contained in Counts I and II, but objects to a joint trial with Fahey which includes the charges contained in Count III.' After Fahey joined in the motion, the district court denied it. Later, at the start of the trial, Gill filed a second motion for severance, claiming that the evidence to be produced at trial would place him in a position antagonistic to Fahey. He requested a separate trial. During the trial Fahey made a similar motion. Both motions were denied.
20
Although their briefs are far from clear, the defendants appear to argue that there was a misjoinder of counts under Rule 8(b) and that, in any event, severance should have been granted under Rule 14.
21
The defendants contend that the joinder of Counts I. II and III violated Rule 8(b). It is their position that the three counts do not constitute the 'same series of acts or transations' as required by the rule. Counts II and III do relate, however, to the occurrence which is the basis of the Hobbs Act violation alleged in Count I. The same evidence adduced to prove the Government's charge under Count I was used to prove Counts II and III. See McElroy v. United States, 164 U.S. 76, 17 S.Ct. 31, 41 L.Ed. 355 (1896). Moreover, the alleged extortion and the denials of complicity here were as closely related as the misprison and the bank robbery charges in United States v. Daddano, 432 F.2d 1119 (7th Cir. 1970). There we held that the relationship of the two separate charges was 'close enough that they may be deemed a 'series' under Rule 8(b).' 432 F.2d at 1125. Without the nexus between the alleged extortion and the separate false declarations there would have been an impermissible joinder under Rule 8(b); but Count I provided the nexus which permitted the joinder of the three counts.
22
This ruling, however, does not answer the question whether the joinder was so prejudicial that there should have been a severance under Rule 14. Gill contends that his trial on Count I should be severed from Count II; Fahey makes the same contention regarding Count I and Count III. They argue that it was prejudicial for the jurors to be aware of the fact that the grand jurors disbelieved each one's grand jury testimony denying involvement in the activity for which he was charged on the extortion count. They maintain that each defendant's credibility was impeached before he took the witness stand. We do not decide this important question, however, since in the motion for severance, filed by Gill and joined in by Fahey, Gill consented to being tried on Counts I and II and Fahey, by joining in the motion, consented to being tried on Counts I and III. Thus, they waived the very issue they now seek to present on appeal.
23
Another question which was asserted in the destrict court remains: whether the joinder was so prejudicial that the defendants should have been afforded separate trials under Rule 14. The main contention is that neither should have been compelled to be tried jointly since only Gill was charged in Count II and only Fahey in Count III. It is settled that severance under Rule 14 rests in the discretion of the trial judge, subject to correction only if there has been an abuse of descretion. United States v. Echeles, 352 F.2d 892 (7th Cir. 1965). In that case we said: '. . . (A) Single joint trial, however desirable from the point of view of efficient and expeditious criminal adjudication, may not be had at the expense of a defendant's right to a fundamentally fair trial.' 352 F.2d at 896. Both defendants, while claiming prejudice by being tried together, probide little if any support in their briefs for their claim. The prejudice, if any, amounted to the fact that the jurors were aware that the codefendant was charged individually with an additional crime which was separate from the charges against the other defendant. The jurors were instructed by the judge that the evidence relating to the perjury charge against one defendant could not be used as evidence to prove any other count. Under these circumstances, we are not prepared to hold that there was an abuse of discretion in granting a severance of defendants. United States v. Kahn, 381 F.2d 824 (7th Cir. 1967).
V
24
Both defendants contend that the supplementary instruction given the jury after it had deliberated for some ten hours, violated this court's decision in United States v. Brown, 411 F.2d 930 (7th Cir. 1969). The instruction was substantially similar to the instruction given in United States v. Silvern, 484 F.2d 879 (7th Cir., 1973), at 882, n. 5. In Silvern, Judge Sprecher, speaking for the majority of the en banc court, held that under the circumstances of that case there was no prejudice in giving the supplemental instruction-- the Allen charge intermeshed with the instruction suggested by the American Bar Association and recommended in Brown.4 The majority also held that any conviction thereafter would be reversed if any supplementary instruction other than the exact instruction recommended in Brown were given to a deadlocked jury. The instant case was tried prior to the en banc decision in Silvern; accordingly, we are bound by the decision in Silvern in holding that no prejudice resulted from the supplemental instruction which was substantially the same as that given in Silvern.
25
Before giving the supplementary instruction with which we were concerned in Silvern, the trial judge, as a preamble, stated:
26
In your job of determining the facts, you are reminded before each of you was accepted and sworn to act as a juror, you were asked questions regarding your competency, qualifications, fairness and freedom from prejudice or sympathy. Neither prejudice nor sympathy should play any part in your deliberations. On the faith of those answers you were accepted as jurors by the parties. Therefore, those answers are as binding on each of you now as they were then, and should remain so until you are discharged from consideration of the case.
27
Then, after giving the supplementary instruction, the trial judge concluded:
28
In determining the guilt or innocence of a defendant, you should not give any consideration to the matter of punishment. This question is exclusively my responsibility.
29
We agree with the defendants that there was no particular reason why the jurors should have been reminded of their oath at the time the supplementary instruction was given or for the judge to repeat what he had told them prior to the time the jury started their deliberations: that it was his exclusive responsibility to decide punishment. The defendants argue that it is possible for a juror to have gained the impression that if he voted not guilty, or if he did not change his vote, he would not be true to his oath. It is also argued that by singling out and repeating the instruction on punishment the judge meant for the jurors to convict and that he would take care of the punishment and possibly give favorable consideration to the defendants regarding their sentences. Such arguments, however, are speculative.
30
The question of coerciveness is close, but on balance we are constrained to hold that these statements do not require reversal, particularly in light of the decision in Silvern.
VI
31
Gill contends that he was prejudiced by the Government's failure to turn over all of Stojan's pretrial statements as required by 18 U.S.C. 3500. The assistant United States Attorney informed the court before the third day of trial that he had inadvertently left out one page of the section 3500 material when he had tendered the statement to defense counsel. The trial judge admonished the Government not to comment on defense counsel's inability to impeach and denied Gill's motion for a mistrial. Stojan was recalled as a witness and cross-examined. At that time the missing page was available to the defendant. We have examined the page and reviewed the cross-examination and find no prejudice to Gill's defense under the circumstances. The delay in producing the one page of the statement was harmless error. Rosenberg v. United States, 360 U.S. 367, 371, 79 S.Ct. 1231, 3 L.Ed.2d 1304 (1959).
32
It is also contended that it was error for the trial judge to refuse to allow Gill to testify about whether he had made similar decisions in the past not to arrest minors who had purchased beverages. It is argued that this proffered testimony was affirmative evidence to prove that Gill properly exercised his discretion in not arresting the minor and not charging Stojan with a liquor violation. Whether he had made prior decisions not to arrest in similar situations was irrelevant to the question whether he extorted money on this occasion. Cf. United States v. Isa, 452 F.2d 723 (7th Cir. 1971).
33
Fahey argues that the Government failed to show that he had been advised by the prosecutor at the time of his grand jury testimony that he could purge himself of the allegedly false declaration by subsequently recanting. There is no duty on the Government prosecutor to attempt to get the witness to recant. Perforce, failure to show that an attempt was made is not an element of the offense. 18 U.S.C. 1623(a), (c), and (e).
34
The last contention raised on appeal is that the standard used by the district judge in sentencing the defendants was improper. The maximum penalty for extortion is twenty years and the maximum penalty for false declaration is five years. Gill received two four-year concurrent sentences and Fahey received two three-year concurrent sentences. The asserted improper standard was that the trial judge imposed punishment on police officers in accordance with their rank. Gill, a lieutenant, received the four-year sentence, Fahey, a sergeant, received the three-year sentence, and a patrolman sentenced about a week prior received a two-year sentence for a similar crime. The trial judge said that he felt that 'only this type of deterrent' could have an effect on future crime. Courts of appeals have no reviewing power over sentencing except perhaps in the most extraordinary circumstances; this is not such a case.
35
The convictions are affirmed.
1
The author of this opinion stated a view in a prior case, United States v. Amabile, 395 F.2d 47, 54 (7th Cir. 1968), that is in opposition to those expressed by Judge Fairchild in DeMet. With reluctance, the author accepts Judge Fairchild's opinion in DeMet as the law of the circuit. See concurring opinion, Swygert, C.J., United States v. DeMet, at pp. 822 and 823
2
Rule 8(b) provides:
Joinder of Defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.
3
Rule 14 provides:
Relief from Prejudicial Joinder. If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.
4
The Allen charge, also known as the dynamite charge, takes its name from the case of Allen v. United States, 164 U.S. 492, 501-502, 17 S.Ct. 154, 41 L.Ed. 528 (1896). The Supreme Court approved the giving of the instruction in Allen, but this circuit under its supervisory power held in United States v. Brown, 411 F.2d 930 (1969), that the American Bar Association standards on supplementary instructions were to be followed instead of the Allen charge | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1624887/ | 15 So. 3d 590 (2009)
TIRADO
v.
STATE.
No. 2D09-2866.
District Court of Appeal of Florida, Second District.
August 19, 2009.
Decision without published opinion Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624893/ | 522 So. 2d 1066 (1988)
Willie T. HERRING and Patricia Herring, Appellants,
v.
FIRST SOUTHERN INSURANCE COMPANY, an Insurance Corporation, and Empire Indemnity Insurance Company, an Insurance Corporation, Appellees.
No. BT-12.
District Court of Appeal of Florida, First District.
April 12, 1988.
*1067 Brent M. Turbow, Jacksonville, for appellants.
L. Jack Gibney of Toole, Bubb & Beale, P.A., Jacksonville, for appellees.
ZEHMER, Judge.
Willie and Patricia Herring appeal a final summary judgment in favor of First Southern Insurance Company and Empire Indemnity Insurance Company granted on the ground that the rental car owned by Alpha Auto Rentals, Inc., the named insured under the automobile liability policies written by these two companies, was not insured at the time of the accident because Alpha failed to comply with insurance policy reporting requirements regarding newly acquired cars. The following facts are not in dispute.
On April 24, 1985, Alpha purchased an automobile for addition to its rental fleet. Alpha did not place this automobile in its rental fleet until sometime in May 1985, after it had obtained the title certificate and license tag. On June 11, 1985, the subject automobile had been rented in the usual course of Alpha's business and was being driven by Martha Delmoral with Alpha's consent. The vehicle collided with a motorcycle operated by Willie Herring and caused Herring substantial injuries. Also on June 11, 1985, after the collision had occurred, Alpha notified First Southern and Empire, its insurers, that it had added the automobile to its rental fleet. Subsequently, Willie and Patricia Herring obtained a judgment against Martha Delmoral and Alpha for damages. When Alpha failed to satisfy the judgment, the Herrings sued First Southern and Empire on the ground that they, as Alpha's insurers, were responsible for the damages assessed against Alpha. First Southern and Empire refused coverage on the ground that the subject automobile was not an insured vehicle, citing Alpha's failure to timely report the addition of this car as required by explicit provisions in the policies.
The insurance policy in question[1] requires Alpha to remit reports within 20 days following the end of each calendar month showing:
a. the number of rental autos at the end of the previous month;
b. rental autos added or deleted during the month, by date, identifying each such auto by motor or serial number and
c. the total number of autos at the end of the month.
Alpha is required to pay a premium that is computed by "multiplying the rate times the number of rental autos developed during the reporting period." The amount of the annual premium is estimated and paid in advance, and retrospectively adjusted based on the monthly reports required by the policy. The policy provides that automobiles acquired after the policy begins are covered only if: "you (Alpha) tell us (the *1068 insurer) on the next report after you acquire it (the automobile) that you want us to insure it for that coverage."
Southern and Empire contend that, for purposes of this policy notice requirement, a vehicle is "acquired" when it is purchased and delivery is taken, and that this was done on April 24, 1985. Therefore, appellees argue, Alpha's failure to report the vehicle on the May 20, 1985 monthly report constituted a failure to comply with the notice provisions of the policy and left the vehicle uninsured at the time of the accident. Appellants, on the other hand, contend that "acquire" should be interpreted to mean the date the vehicle was placed in the rental fleet during May 1985 and that it was not required to be reported until the June 20 report was submitted.
Courts may apply rules of construction to contracts of insurance only when the policy language is indefinite, ambiguous or equivocal. United States Fire Insurance Company v. Morejon, 338 So. 2d 223 (Fla. 3d DCA 1976). Ambiguity arises when policy language is capable of more than one reasonable interpretation. Travelers Insurance Company v. C.J. Gayfer's & Co., 366 So. 2d 1199, 1202 (Fla. 1st DCA 1979). Where two interpretations of an insurance contract may be fairly made, the interpretation allowing the greater coverage will prevail. 366 So.2d at 1201. The purpose of rules of construction is to determine the parties' intention by considering the contract as a whole, giving effect to the total instrument and its various provisions if reasonably possible. New Amsterdam Casualty Company v. Addison, 169 So. 2d 877 (Fla. 2d DCA 1964).
The insurance policies under review provided liability and other coverage for automobiles used in Alpha's rental business. We conclude that the term "acquired," which is not specifically defined in the policies, necessarily means acquired for use in the rental business. Thus, it is ambiguous in that the language can reasonably be interpreted to mean either the date the vehicle was sold and delivered by the seller to Alpha's representative or the date the vehicle was added by Alpha to its rental fleet for use in its rental business. Upon considering the policy as a whole, we conclude that the latter construction is more in keeping with the overall purpose and intent of the parties to provide insurance coverage on vehicles used in the rental fleet, especially in light of the advance payment of premium and retrospective adjustments based on monthly reports submitted after the fact. We hold, therefore, that the term "acquired" as used in the subject policies means the date the automobile is added to the insured's rental fleet. Since Alpha did not add the vehicle to its rental fleet until sometime in May, 1985, the policies did not require notification that the vehicle had been acquired until submission of the report due June 20, 1985.
The final summary judgment is reversed and the cause is remanded for further proceedings.
REVERSED AND REMANDED.
SHIVERS and WIGGINTON, JJ., concur.
NOTES
[1] Alpha was insured under three separate policies of insurance, all three of which contained substantially similar policy language pertinent to this dispute. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624939/ | 522 So. 2d 4 (1987)
Donald Dudley SHEFFIELD
v.
STATE.
1 Div. 522.
Court of Criminal Appeals of Alabama.
December 8, 1987.
Rehearing Denied January 26, 1988.
Certiorari Denied April 1, 1988.
*5 W. Kenneth Gibson, Fairhope, for appellant.
Don Siegelman, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.
Alabama Supreme Court 87-553.
TYSON, Judge.
Donald Dudley Sheffield was charged by solicitor's complaint with operating a vehicle while there was a .10 percent or more by weight of alcohol in his blood, in violation of § 32-5A-191(a)(1), Code of Alabama 1975. (R. 123). He was found guilty by the jury of this offense (R. 152) and fined $500 and costs. (R. 153).
Alabama State Trooper James Fant testified that, at approximately 8:30 p.m. on February 11, 1986, he saw a Lincoln Town Car traveling at an excessive rate of speed on U.S. 90 in Baldwin County, Alabama. After Fant stopped this car, the appellant got out. The appellant was unsure about his walk and staggered "slightly". His speech was "slightly" slurred and his eyes were "slightly" glassed. The appellant was very loud and happy.
Fant informed the appellant as to why he had been stopped and asked him to get in the patrol car. The appellant bumped into the patrol car several times and had trouble opening the car door. Inside the patrol car, Fant noticed a strong odor of alcoholic beverages coming from this appellant.
On direct examination Fant testified that he arrested this appellant for speeding. For clarity, we quote the record. (R. 49-50)
"BY MR. FLOYD:
"Q. Would you please describe that odor?
"A. Yes, sir. He had a strong odor of some type of alcoholic beverage about him, fermented beverage.
"Q. What did you do at this point?
"A. I advised Mr. Sheffield that he was under arrest for speeding.
"Q. And did you do anything else?
"A. At this point, I talked to a party that was in Mr. Sheffield's car to advise her what was taking place, why I had stopped herhim. I did this outside the car, standing outside my door. I then got back in the car to talk with Mr. Sheffield again."
Officer Fant then advised the appellant's female companion as to what was going on and advised this appellant, Mr. Sheffield, that he wanted him to take the field sobriety test. (R. 51). Officer Fant then told this appellant that he needed to take him to the Daphne Police Department to administer an Intoxilizer test and did so approximately 25 minutes later.
Over objection, through appellant's Motion in Limine and several objections on the record, the result of this test was admitted into evidence. The test result showed .20% alcohol content.
I
Appellant's counsel had filed a pretrial Motion in Limine seeking under Morton v. State, 452 So. 2d 1361 (Ala.Cr.App.1984) and Boyd v. City of Montgomery, 472 So. 2d 694 (Ala.Cr.App.1985) to prevent the *6 results of the Intoxilizer test from being presented into evidence before the jury. Appellant's counsel repeatedly objected and called the trial court's attention, on several occasions, to the foregoing cases.
On cross-examination Officer Fant's testimony is as follows:
"Q. And you've testified that Mr. Sheffield left that vehicle and walked back to your vehicle or somewhere in close proximity and the two of you talked; is that correct?
"A. Yes, sir.
"Q. A later occasion he sat himself on the front seat of your trooper car and you had a discussion; is that correct?
"A. Yes, sir.
"Q. And it was at that time that you informed him the nature of your stop was for speeding; is that correct?
"A. Yes, sir.
"Q. It was at that time you made a notation on your log as to the time of that stop; is that correct?
"A. No, sir, not at that time.
"Q. Okay. Now, the arrest for Mr. Sheffield was for the offense of speeding and for speeding alone; is that correct?
"A. Yes, sir.
"Q. No other charge?
"A. At that time, no, sir.
"Q. All right. You never at any time arrested Mr. Sheffield for the offense of driving under the influence, did you, sir, at that time?
"A. Talking about at the scene?
"Q. Yes, sir.
"A. No, sir, I did not." (R. 69-70)
On this appeal the issue is whether a motorist must be arrested for DUI before being taken into custody and required to submit to a chemical test for intoxication. In Hays v. City of Jacksonville, this day decided, 518 So. 2d 892 (Ala.Cr.App.1987), Presiding Judge Bowen stated the following:
"Under Alabama's Chemical Test for Intoxication Act (Implied Consent Law) Ala.Code 1975, § 32-5-191 et seq., a motorist must have been `lawfully arrested' before any chemical test to determine intoxication is conducted in order to authorize the admission into evidence of the test results. Ex parte Love [Ms. 86-128, June 5, 1987], 513 So. 2d 24 (Ala.1987) [on remand, 513 So. 2d 31 (Ala.Cr.App.1987)]. The issue in this case is whether the defendant was properly arrested.
"Ala.Code 1975, § 32-1-4(a) provides: "`(a) Whenever any person is arrested for a violation of any provision of this title punishable as a misdemeanor, the arresting officer shall, ... take the name and address of such person and the license number of his motor vehicle and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice, ... such officer shall thereupon and upon the giving by such person of a sufficient written bond, approved by the arresting officer, to appear at such time and place, forthwith release him from custody.' (Emphasis added.)"
"`The clear import of this section is that the police have no authority to take a motorist into custody and then require him to go to the local stationhouse when that motorist has committed a misdemeanor traffic violation but is willing to sign the summons to court.' Morton v. State, 452 So. 2d 1361, 1364 (Ala.Cr.App. 1984). Morton involved a prosecution for the possession of cocaine discovered after the defendant was stopped for speeding. The issue was `whether the police had the authority to impound Morton's vehicle.' 453 So. 2d 1364. In that case the application of the Implied Consent Law was neither raised nor considered. The validity of the arrest, however, was directly in issue since `the propriety of the impoundment [was] ... grounded on the propriety of the initial arrest.' Id. This court held that `[e]xcept for the exceptions provided by Section 32-1-4(b), a person arrested for a misdemeanor traffic violation is not subject to further detention for that offense once the arresting officer has obtained the necessary information and given the motorist the "summons or notice" to appear.' *7 452 So.2d at 1364 (quoting Daniels v. State, 416 So. 2d 760, 765 (Ala.Cr. App.1982)."
"Section 32-5-192(a) provides in pertinent part:
"`Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given his consent, subject to the provisions of this division, to a chemical test or tests of blood, breath or urine for the purpose of determining the alcoholic content of his blood if lawfully arrested for any offense arising out of acts alleged to have been committed while under the influence of intoxicating liquor. The test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving a motor vehicle upon the public highways of this state while under the influence of intoxicating liquor.'
"Section 32-5A-191 makes driving under the influence a criminal offense. Section 32-5A-191(g) provides: `A person who has been arrested for violating the provisions of this section shall not be released from jail under bond or otherwise, until there is less than the same percent by weight of alcohol in his blood as specified in subsection (a)(1) hereof [0.10 percent].'" "In Maffett v. Roberts, 388 So. 2d 972, 977 (Ala.1980), the Alabama Supreme Court made it clear that `[a]n arrest for one of the enumerated offenses furnishes the implied consent under the statute.'
"The `enumerated offenses' to which the Maffett court referred are those (1) which arose out of the acts allegedly committed while the motorist was driving under the influence on the public highways of the state and (2) those for which the motorist was lawfully arrested. § 32.5.192(a)."
In the instant case the charge, according to Officer Fant, against this appellant was "speeding". This was a result of having pursued this appellant and having placed a "radar gun" on the appellant's vehicle.
Speeding is a misdemeanor traffic infraction. See §§ 32-5A-170-171, Code of Alabama 1975.
Custodial arrest is not authorized for speeding only. Buchanan v. City of Auburn, 512 So. 2d 145 (Ala.Cr.App.1987). Ex Parte Love, supra.
There are certain exceptions which allow a custodial arrest for a misdemeanor traffic offense pursuant to the provisions of § 32-1-4(b). These are as follows:
"(a) Any person arrested and charged with an offense causing or contributing to an accident resulting in injury or death to any person";
"(b) Any person charged with driving while under the influence of intoxicating liquor or of narcotic or other drugs";
"(c) Any person whom the arresting officer shall have good cause to believe has committed any felony." Ala.Code § 32-1-4(b) (emphasis added).
The clear language of § 32-1-4(b) requires that in order to fall within the custodial arrest exception of § 32-1-4(a), a motorist must be charged with DUI. This is true unless one of the other exceptions would be applicable, such as an accident resulting in personal injury or where the officer had probable cause to believe the motorist had committed a felony. Thus, there must be an actual arrest for DUI based on probable cause to arrest and such must be lawful within the meaning of § 32-1-4 Code of Alabama, 1975. Ex Parte Love, 513 So. 2d 24 (Ala.1987).
It therefore follows that this appellant's cause must be reversed and remanded as the appellant was arrested for speeding and required to submit to a breath test later in Daphne, Alabama. He was not formally charged with DUI until the results of the Intoxilizer were available.
In view of the foregoing, the admission into evidence of the results of the blood alcohol test of Sheffield was reversible error. Trooper Fant was not authorized to detain Sheffield following his arrest *8 for speeding only. (Authorities herein cited).
Because the results of the Intoxilizer 5000 test were admitted into evidence, this cause is hereby reversed and remanded.
REVERSED AND REMANDED.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625124/ | 522 So.2d 454 (1988)
Dorothy L. MORGAN and James A. Morgan, Wife and Husband, Appellants,
v.
AMERICAN SECURITY INSURANCE COMPANY, Appellee.
No. BT-19.
District Court of Appeal of Florida, First District.
March 15, 1988.
*455 Daniel M. Soloway and James F. McKenzie of McKenzie & Associates, P.A., Pensacola, for appellants.
Robert C. Palmer, III, of Harrell, Wiltshire, Stone and Swearingen, Pensacola, for appellee.
SMITH, Chief Judge.
The Morgans appeal a summary final judgment entered in favor of American Security Insurance Company (American Security) in their action on a fire insurance policy. Finding that the policy was avoided when the named insured and policyholder, Dorothy L. Morgan, parted with her insurable interest before the loss, we affirm.
While the Morgans were still married, Dorothy Morgan purchased insurance on their home from American Security.[1] The policy was issued on November 3, 1981, and provided that the term "insured" included the named insured Dorothy L. Morgan and any relative residing in the household. The definitional section provided that throughout the policy, "you" and "your" refer to the "named insured" in the declarations and the spouse if a resident of the same household. Shortly thereafter, the Morgans entered into a separation agreement and Dorothy quitclaimed her interest in the house to her husband as she was required to do by this agreement.[2] The Morgans divorced on August 26, 1982.
James Morgan purchased insurance on the home from another insurance company on October 22, 1982. On November 28, 1982, the house was destroyed by fire. On November 29, 1982, American Security mailed a cancellation notice to Dorothy Morgan for failure to pay premiums. Thereafter, James Morgan's insurance company tendered its policy limits on the premises in payment of the loss. When the Morgans sought to recover on Dorothy Morgan's insurance policy, American Security refused to pay and this suit followed.
After discovery, the trial court entered summary final judgment for American Security concluding, among other things, that Dorothy L. Morgan had no insurable interest in the property at the time of the loss because of her prior conveyance of her interest in the property to James Morgan; further, that James was not an insured under the policy because at the time of loss, he was not a spouse or relative of Dorothy's residing in her household.
The insured must have an insurable interest in the property at the time he takes out the insurance and at the time of the loss. Fire Insurance is considered a personal contract in that the hazards the insurance company elects to assume run to the individual rather than upon the property. If the insured parts with all interest in the property prior to the loss, it is not covered. A sale by the insured between the date of the policy and the date of the loss is considered to avoid protection. 4 Appleman, Insurance Law and Practice, § 2241 (1969). Further, the insurable interest of the parties to an insurance contract is determined by the facts existing at the time of the loss. Id. at § 2245. Accordingly, we agree with the trial court that Dorothy Morgan's transfer of her insurable interest in the property before the loss avoided protection. See also, Johnson v. Aetna Life & Casualty Co., 472 So.2d 859 (Fla. 3rd DCA 1985); Allstate Insurance Co. v. Fulton, 345 So.2d 854 (Fla. 3rd DCA 1977); Aetna Insurance Co. v. King, 265 So.2d 716 *456 (Fla. 1st DCA 1972); and section 627.405(1) and (2), Florida Statutes.
We affirm for the further reason that James Morgan was not the "spouse" or "relative" of the named insured at the time of the loss. Appellants argue that because the policy in question explicitly provided that a spouse's interest in the property would be extinguished upon the named insured's death, and because no similar condition for termination was provided for upon divorce, an ambiguity arose. However, the term "spouse" in this insurance contract is not ambiguous and should be given its plain and ordinary meaning. The term means simply the legal wife or husband of the named insured at the time of the loss. Sypien v. State Farm Mutual Automobile Insurance Co., 111 Ill. App.3d 19, 66 Ill.Dec. 780, 443 N.E.2d 706 (1982), 36 A.L.R.4 580; see also 6C Appleman, Insurance Law and Practice, § 4352, at 20-22 (1979) (named insured's spouse will usually be considered a member of the same household, despite a separation and separate residency, but spouse will no longer be covered following a divorce). Thus, the policy was not ambiguous for failing to specify that a spouse's interest in the policy will be extinguished upon divorce, since by definition, James Morgan was no longer a "spouse" covered under the policy after the Morgans divorced. See generally, Annot., 36 A.L.R.4 588 (1985); and Annot., 93 A.L.R.3d 420 (1979). Because these points are controlling and require affirmance, we do not reach the question of whether there was a cancellation of this insurance policy by substitution when James Morgan purchased another insurance policy on the home.
AFFIRMED.
ERVIN and NIMMONS, JJ., concur.
NOTES
[1] James Morgan testified that he had no involvement in the purchase of the policy because he was working out-of-town when it was purchased. He explained that his job took him out-of-town quite a bit and thus he was not at home continuously.
[2] The separation agreement also required Dorothy Morgan to assign the American Security insurance policy to James Morgan but the trial court concluded that this did not accomplish a valid assignment because it was not approved in writing as required by the terms of the policy. The Morgans did not appeal this portion of the summary final judgment, and concede in their brief that no valid assignment was effected. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/77518/ | 470 F.3d 1036
FLORIDA EVERGREEN FOLIAGE, Chang, Alpha Botanical, Inc., Richard A. Gallant, Sprengers & Drath, Inc., d.b.a. Mitchell Nursery Farms, J.B. Evelyn, Viveros Tropicales S.A., Andy Cole Valle, Florida Foliage Exchange, Anna Degale, Associated Growers, Herb Koslow, Campbell's Foliage, Inc., Patrick Campbell, Plant & Blooms, Joyce Wong, Costa Nursery, Maria Costa Smith, Bijan Tropical, Inc., Reza Kalantari/Bijan, d.b.a. Bijan Tropical, Inc., Reza Kalantari, Reza Kalantari/Green, d.b.a. Green Exotics, Ruby A. Turvin, Turvin Tropicals, Larry Lopez, Belc Enterprises, Inc., Hattaway, Caribe Bromelias, Inc., Farm Op, Inc., Lipman & Lipman, Inc., World Agriculture, Inc., f.k.a. Otomot, Inc., Plaintiffs-Counter-Defendants-Appellants,Wayne Tai, Plaintiff,v.E.I. DUPONT DE NEMOURS AND COMPANY, Defendant-Counter-Claimant-Appellee.Florida Evergreen Foliage, Chang, Alpha Botanical, Inc., Richard A. Gallant, Sprengers & Drath, Inc., d.b.a. Mitchell Nursery Farms, et al., Plaintiffs-Counter-Defendants-Appellees,Mazzoni Farms, Inc., a Florida Corporation, Jack Martin Greenhouses, Inc., f.k.a. M & M Ornamentals, Inc., Plaintiffs,Jack Martin, Plaintiff,Wayne Tai, Plaintiff,v.E.I. DuPont De Nemours and Company, a Delaware corporation, Defendant-Counter-Claimant-Appellant,Crawford & Company, a Georgia corporation, Defendant.J.B. Evelyn, Counter-Defendant-Appellee.
No. 04-14455.
No. 04-14506.
United States Court of Appeals, Eleventh Circuit.
November 27, 2006.
William Angus McKinnon, A. Camden Lewis, Lewis, Babcock & Hawkins, LLP, Columbia, SC, David J. Sales, Searcy, Denney, Scarola, Barnhart & Shipley, P.A., West Palm Beach, FL, Stephen T. Cox, Cox & Moyer, San Francisco, CA, Walter Samuel Holland, The Ferraro Law Firm, P.A., Coral Gables, FL, for Plaintiffs.
C. Allen Garrett, Jr., A. Stephens Clay, IV, James F. Bogan, III, Kilpatrick Stockton, LLP, Atlanta, GA, Edward A. Moss, Eileen Tilghman Moss, Law Offices of Shook, Hardy & Bacon, L.L.P., Miami, FL, for Defendants.
Appeals from the United States District Court for the Southern District of Florida.
Before PRYOR, FAY and REAVLEY,* Circuit Judges.
PER CURIAM:
I. INTRODUCTION
1
This appeal arises from twenty-eight separate complaints filed between 1998 and 2000 that were consolidated for pretrial purposes. A consortium of Florida farmers, plant nurseries, and corporations ("Growers") appeals the denial of their motions to amend their complaints and the summary judgment entered against their claims of fraudulent settlement, spoliation, and racketeering. DuPont cross-appeals the summary judgment against its claim of breach of contract. The district court denied the Growers' motion to amend both because it was untimely and because it would have been futile. The district court granted summary judgment against the Growers' claims on the basis of our decision in Green Leaf Nursery v. E.I. DuPont De Nemours & Co., 341 F.3d 1292 (11th Cir.2003). The district court granted summary judgment against DuPont on its claim of breach of contract on the basis of the opinion of the Delaware Supreme Court in E.I. DuPont De Nemours & Co. v. Florida Evergreen Foliage, 744 A.2d 457 (Del.1999), which answered a certified question of the district court. We affirm.
II. BACKGROUND
2
In the early 1990s, the Growers and other parties around the country sued DuPont for damages caused by a DuPont fungicide, Benlate. The Growers alleged that Benlate was contaminated with a toxic chemical, sulfonylureas, that killed their plants instead of the fungus on their plants. Notwithstanding ongoing accusations of discovery fraud and litigation misconduct against DuPont in the Growers' case and other cases, DuPont and the Growers settled. The Growers released DuPont from all claims and promised not to commence any action against DuPont "based upon or in any way related to any causes of action, claims, demands, actions, obligations, damages or liabilities which are the subject of this Release." The standard release also provided that the Growers would pay attorney's fees and costs for DuPont were they to file claims contrary to the release.
3
Following that settlement, events turned for the worse for DuPont. In one of the first Benlate cases to go to trial, In re E.I. DuPont De Nemours & Co.-Benlate Litigation, 918 F.Supp. 1524 (M.D.Ga.1995) ("the Bush Ranch case"), DuPont was sanctioned and ordered to pay a fine of $100 million for committing fraud on the court, contempt of court, and other discovery violations. The court found that DuPont and its independent testing company Alta Labs, with the knowledge of its counsel Alston & Bird, had falsified test results and other key corporate documents. Id. at 1556. After we reversed the district court in the Bush Ranch case on procedural grounds, see 99 F.3d 363 (11th Cir.1996), the district court referred the matter to the United States Attorney for prosecution, and DuPont settled with the Bush Ranch parties for $11.25 million. See Matsuura v. Alston & Bird, 166 F.3d 1006, 1008 (9th Cir.1999) (recounting the history of the Bush Ranch case).
4
After learning of the discovery infractions committed by DuPont in the Bush Ranch case, the Growers filed these lawsuits in the Southern District of Florida alleging fraudulent inducement, fraud on the court, RICO violations, and other causes of action. DuPont filed a counterclaim for breach of the settlement agreement. Because the settlement agreements were governed by Delaware law, the district court certified the following question to the Delaware Supreme Court: "Under Delaware law, does the release in these settlement agreements bar Plaintiffs' fraudulent inducement claims?" In E.I. DuPont De Nemours & Co. v. Florida Evergreen Foliage, 744 A.2d 457, the Delaware Supreme Court ruled that the Growers were not unambiguously barred by the settlement agreement from complaining that they had been fraudulently induced to settle by misinformation during discovery.
5
On August 24, 2001, the district court granted judgment on the pleadings in favor of DuPont in one of the consolidated cases. An interlocutory appeal from that judgment was heard in this Court and, in Green Leaf Nursery v. E.I. DuPont De Nemours & Co., 341 F.3d 1292, we affirmed the district court. We held that Florida law provides absolute immunity from tort claims based on a party's conduct during the course of litigation. Id. at 1302. "Because DuPont's alleged misconduct occurred during the Underlying Litigation and during other Benlate litigation, according to [the Supreme Court of Florida], Florida law clearly provides an absolute immunity to DuPont for their alleged misconduct." Id. at 1303. We also affirmed on the alternative basis that, even if DuPont did not have an absolute immunity, the plaintiffs could not show that they reasonably relied on DuPont's misrepresentations in the light of the plaintiffs' knowledge of its discovery violations in other cases. Id. at 1304-08.
6
The Growers originally filed motions to make identical amendments to their complaints while their appeal in Green Leaf was pending, and the district court was without jurisdiction to grant leave to file an amended complaint. See id. at 1309. On remand, the Growers moved again to amend their complaints to allege new violations of the Florida RICO statute. DuPont moved for summary judgment in all the consolidated cases. The district court denied the Growers' motions to amend their complaints. 336 F.Supp.2d 1239 (S.D.Fla.2004). The district court reasoned that the Growers "could and should have made any necessary amendments to their pleadings years ago before this Court and DuPont expended enormous time and effort in addressing the merits of the claims asserted originally." Id. at 1255. The district court also held that the amended claims would be futile either because they would be "substantially similar" to claims rejected in Green Leaf or, alternatively, would fail to allege a RICO enterprise under Florida law. Finally, the district court adopted the determination of the Delaware Supreme Court that the settlement agreement did not bar the Growers from filing fraudulent inducement claims and granted summary judgment against DuPont on its breach of contract claim. Id. at 1290.
III. STANDARD OF REVIEW
7
We review the denial of a motion to amend a complaint for an abuse of discretion. Compagnoni v. United States, 173 F.3d 1369, 1371 n. 7 (11th Cir.1999). "However, when the district court denies the plaintiff leave to amend due to futility, we review the denial de novo because it is concluding that as a matter of law an amended complaint `would necessarily fail.'" Freeman v. First Union Nat'l, 329 F.3d 1231, 1234 (11th Cir.2003) (citation omitted). We review a summary judgment de novo. In re Optical Techs., Inc., 246 F.3d 1332, 1334 (11th Cir.2001).
IV. DISCUSSION
8
Our resolution of this appeal begins with a review of the denial of the Growers' motions to amend their complaints. If the district court abused its discretion in denying the Growers' motions to amend their complaints, then the district court also erred by granting partial summary judgments, one for the Growers and the other for DuPont, based on the allegations of the Growers' unamended complaints. For that reason, we divide our discussion in three parts: first, we review the denial of the Growers' motions to amend their complaints; second, we review the partial summary judgment for DuPont on the Growers' claims; and, third, we review the partial summary judgment in favor of the Growers on the breach of contact claim of DuPont.
9
A. The District Court Did Not Abuse Its Discretion by Denying the Growers' Motions to Amend Their Complaints.
10
"A party may amend the party's pleading only by leave of the court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). "[U]nless a substantial reason exists to deny leave to amend, the discretion of the District Court is not broad enough to permit denial." Shipner v. E. Air Lines, Inc., 868 F.2d 401, 407 (11th Cir.1989). "[A] motion to amend may be denied on numerous grounds such as undue delay, undue prejudice to the defendants, and futility of the amendment." Brewer-Giorgio v. Producers Video, Inc., 216 F.3d 1281, 1284 (11th Cir.2000) (citations and internal quotation marks omitted). "The lengthy nature of litigation, without any other evidence of prejudice to the defendants or bad faith on the part of the plaintiffs, does not justify denying the plaintiffs the opportunity to amend their complaint." Bryant v. Dupree, 252 F.3d 1161, 1164 (11th Cir.2001). The district court denied the Growers' motions to amend because of untimeliness and futility. We address each ground in turn.
11
The Growers argue that the district court denied their motions to amend their complaints solely based on the "lengthy nature of the litigation" or "mere passage of time." We disagree. The district court referenced the length of time between the original complaints and the Growers' motions to amend to explain its finding of undue delay. See Maynard v. Bd. of Regents of Div. of Univs. of Fla. Dep't of Educ., 342 F.3d 1281, 1287 (11th Cir.2003) ("Because we conclude that [the plaintiff] has failed to show good cause for the eleventh hour amendment, we find that the district court did not abuse its discretion by enforcing its timetable for disposition of the case."). The district court found, and the Growers admitted, that they knew about the possibility of Florida RICO claims when they filed their original federal complaints. In fact, the Growers' liaison counsel represented parties who had argued these very claims against DuPont to a jury in state court.
12
The district court reasonably found that the Growers waited too long to file properly motions to amend their complaints. The Growers did not move to amend their complaints until after the district court denied a motion to dismiss as to all the claims, granted judgment on the pleadings as to one party, certified questions to the Supreme Courts of Delaware and Florida, and certified its judgment on the pleadings for interlocutory review in this Court. See, e.g., Gregory v. Mitchell, 634 F.2d 199, 202-03 (5th Cir. Jan.1981) (affirming denial of leave to amend sought after motion to dismiss and motion for summary judgment had been taken under advisement). Moreover, the Growers offered no good reason for their delay.
13
The district court also reasonably found that to allow an amendment at that stage of the litigation would prejudice DuPont in defending its concurrent federal and state court actions. Parties to complex multi-jurisdictional litigation often seek to leverage final decisions in one jurisdiction in cases still pending in other jurisdictions, but there are limits to how long litigants may delay federal proceedings in the hope that concurrent litigation elsewhere will produce favorable intervening precedents. The district court found that "[t]he prejudice to DuPont results from the prejudice to the justice system itself. Failing to raise these issues previously ... places the DuPont [sic], the Eleventh Circuit, and myself in a position where issues in this case are being resolved in a piecemeal fashion with no logical conclusion." 336 F.Supp.2d at 1257. The liberal amendment policy of Rule 15(a) does not countenance "the old sporting theory of justice" or the use of the federal courts as a forum for testing alternate legal theories seriatim. Freeman v. Cont'l Gin Co., 381 F.2d 459, 469-70 (5th Cir. 1967); 6 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1489 (2d ed.1987).
14
The district court did not abuse its discretion by denying the Growers' motions to amend as untimely. We need not address the alternative ground of futility. We affirm the denial of the Growers' motions to amend.
15
B. Summary Judgment Against the Growers Was Proper.
16
Because there is no way to differentiate the claims that we addressed in Green Leaf from the Growers' claims in this case, the Growers do not even attempt to do so. Instead, they directly challenge three of our conclusions in Green Leaf. We are not at liberty to change our mind as to any of these conclusions. See United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir.1993) ("It is the firmly established rule of this Circuit that each succeeding panel is bound by the holding of the first panel to address an issue of law, unless and until that holding is overruled en banc, or by the Supreme Court.").
17
First, in Green Leaf, we held that the plaintiffs' fraud claims failed because of the absolute immunity for litigation conduct under Florida law. "[A]bsolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior ... so long as the act has some relation to the proceeding." Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606 (Fla.1994). The Growers argue that our decision has been undermined by the passage of time.
18
The Growers argue that, since Green Leaf, Florida litigation immunity has been curtailed. In Ingalsbe v. Stewart Agency, 869 So.2d 30 (Fla.Dist.Ct.App.2004), the Florida Court of Appeal for the Fourth District allowed the attorneys who represented a plaintiff in a lemon law suit to bring an action for tortious interference on the grounds that the settlement by the automobile dealership with the plaintiff interfered with the attorney's fee agreement. The court concluded that "[n]o legitimate interest of Dealer and Client in settling their dispute gives them a privilege to interfere with Lawyer's fee contract in such a way as to restrict the fee due to only the lowest among the contract's reasonable alternatives." Id..
19
The argument of the Growers fails. In contrast with Ingalsbe, the Growers allege tortious conduct against an opposing litigant premised on the manner in which it conducted core litigation activities. The allegations of the Growers are distinct both in kind and degree from the allegations of tortious interference with professional activities addressed in Ingalsbe. In Jackson v. BellSouth Telecommunications, 372 F.3d 1250 (11th Cir.2004), we applied the Florida litigation immunity to a settlement fraud claim. We held that "[t]he rationale underlying Ingalsbe is not implicated here, where the appellants have not alleged any interference with their occupations or other professional activities." Id. at 1276 n. 26.
20
Second, the Growers erroneously challenge another aspect of our earlier decision. In Green Leaf, we also held that the plaintiffs could neither prove common law fraud nor mail and wire fraud as a matter of law because they could not have reasonably relied on any alleged misrepresentation by DuPont. 341 F.3d at 1305. The Growers argue that reliance is not an element of "negative fraud" or concealment, but the Growers cite no Florida law to support this theory. The Growers also provide no basis for differentiating their complaints from the allegations that DuPont "intentionally concealed Benlate's defects" that we considered in Green Leaf. We reiterate our previous ruling: "Because Plaintiffs were represented by counsel, were in an antagonistic and distrusting relationship with DuPont, and settled litigation that included accusations of fraud and other dishonest conduct by DuPont, [the Growers] could not reasonably or justifiably rely on any of DuPont's misrepresentations." Id. at 1305.
21
Finally, in Green Leaf, we held that a plaintiff must allege the destruction of evidence as opposed to the concealment of evidence to state a claim for spoliation of evidence under Florida law. Id. at 1308-09. Without citing controlling authority, the Growers argue that "under Florida law, a spoliation plaintiff need not allege and prove that the defendant destroyed evidence." We disagree. "Concealment of evidence . . . does not form a basis for a claim of spoliation." Jost v. Lakeland Reg'l Med. Ctr., 844 So.2d 656, 658 (Fla. Dist.Ct.App.2003). We affirm the partial summary judgment in favor of DuPont.
22
C. Partial Summary Judgment in Favor of the Growers on the Breach of Contract Claim of DuPont Was Proper.
23
DuPont argues that the Growers breached the settlement agreement by filing suit based on its conduct in the underlying litigation, but the district court granted summary judgment in favor of the Growers on this issue. The settlement agreements provide that they are governed by Delaware law. Responding to a question certified by the district court in this case, the Supreme Court of Delaware ruled that the general release of claims in the settlement agreement did not unambiguously bar claims premised on fraudulent inducement to settle. E.I DuPont v. Fla. Evergreen Foliage, 744 A.2d 457.
24
Although DuPont and the Growers agree that Florida Evergreen Foliage is controlling authority, they urge divergent interpretations. The Growers argue, on the one hand, that the Delaware Supreme Court created a bright-line rule that a claim to fraudulent inducement to settle can only be waived by a specific release. The Growers base their argument on the following statements in Florida Evergreen Foliage: "At a minimum, if one party is to be held to release a claim for fraud in the execution of the release itself, the release should include a specific statement of exculpatory language referencing the fraud" and "the absence of a specific reference to the actionable fraud limits the scope of the general release in this case." Id. at 461. DuPont argues, on the other hand, that the requirement of specific language only applies to ambiguous settlement agreements without other interpretative evidence. Also quoting Florida Evergreen Foliage, DuPont argues that as "the party seeking enforcement of the [ambiguous] release" it should be allowed to offer extrinsic evidence that "the released fraud claim was within the contemplation of the releasing party." Id. at 461.
25
We agree with the Growers' reading of Florida Evergreen Foliage. The Supreme Court of Delaware explained that the Growers' claim for fraudulent inducement to settle is a separate claim from the underlying action and not covered by the general release and covenant not to sue. Because the alleged fraudulent conduct "subsists separate from, and necessarily occurred after," the conduct forming the basis of the underlying litigation, a specific waiver of a claim of fraudulent inducement was necessary to release that claim. Id. at 462; see also Matsuura, 166 F.3d at 1010-11 (predicting that the Delaware Supreme Court would impose a clear statement requirement for the release of fraudulent inducement claims). The decision of the Delaware Supreme Court forecloses the claim of DuPont that the Growers breached their agreements.
V. CONCLUSION
26
The judgment of the district court is AFFIRMED.
Notes:
*
Honorable Thomas M. Reavley, United States Circuit Judge for the Fifth Circuit, sitting by designation | 01-03-2023 | 04-27-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/77671/ | 487 F.3d 1340
Percy BONILLA, Miguel Hernandez, Carlos Cruz, Michael Machado, Julio J. Alvarez, German Sandoval, Carlos Castro, Edgardo Avila, Jose A. Cabrera, Porfirio Varela, Ermin Talavera, Plaintiffs-Appellants,v.BAKER CONCRETE CONSTRUCTION, INC., Defendant-Appellee.
No. 06-12515.
United States Court of Appeals, Eleventh Circuit.
May 30, 2007.
Jamie H. Zidell, J.H. Zidell, P.A., Miami Beach, FL, for Plaintiffs-Appellants.
Alec Dane Russell, Gray Robinson, P.A., Andrew S. Hament, Ford & Harrison, LLP, Melbourne, FL, for Defendant-Appellee.
Theresia Maria Moser, Jones Day, Atlanta, GA, Joan M. Canny, Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterson, P.A., Miami, FL, for Amici Curiae.
Appeal from the United States District Court for the Southern District of Florida.
Before BLACK, BARKETT and KRAVITCH, Circuit Judges.
KRAVITCH, Circuit Judge:
1
This case concerns whether time workers spent traveling on employer-provided transportation to a secure construction site or time spent going through security screening is compensable under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. Appellants Percy Bonilla, et al. ("appellants"), plaintiffs in the underlying dispute, appeal the district court's summary judgment order in favor of appellee-defendant, Baker Concrete Construction, Inc. ("appellee"). After careful consideration of the briefs, oral argument, and evidence in the record, we AFFIRM the district court's order.
I. BACKGROUND
2
Appellants were construction workers employed by appellee, a subcontractor for the lead contractor Turner-Austin, for the North Terminal project at Miami International Airport ("MIA project") from approximately November 2001 until March 2003.1
3
In order to reach their work sites inside the airport, appellants were required to pass through a single security checkpoint to the tarmac and then ride authorized buses or vans to their particular work site. Because FAA regulations prohibit unauthorized vehicles in the secured tarmac area, Turner-Austin provided free buses or vans to transport appellants and other workers from the free employee parking lot to the security gate and on through to each of the separate work sites. Appellants were not required to park at the employee lot, but they were required to enter the facility through the single authorized security entrance and then ride the contractors' authorized vehicles to the various work sites. The security gate was near other public parking lots and a public bus stop; appellants were free to meet the authorized vehicle at the security gate rather than at the employee parking lot several miles away. Riding Turner-Austin's authorized vehicles was the only way for the workers to access the construction sites after passing through the security gate.
4
The employees did not perform any labor while waiting for or riding the vehicles, either at the beginning or end of each work day. No instructions were given by the supervisors nor were any tools carried on the buses because the tools were kept at the work sites. Appellants signed in at the work site and then received their instructions for the day. At the end of the day, appellants would sign out before boarding the bus to leave the airport through the security gate.
5
Although appellants claim that appellee or Turner-Austin supervisors did work on the vehicles and at the security gate (head counts and general supervision), appellants do not claim that they had any responsibilities or duties before arriving at their respective sites other than to show their identification at the security gate and carry their personal safety equipment, including safety goggles, a hard hat, and work boots. Appellants point to the contractors' agreement with the airport, the Construction Related Requirements ("CRR"), that requires all employees to display their personal safety equipment as a condition of being transported to the job site. Appellee disputes appellants' claim that there was any evidence that employees were required to carry their personal safety equipment on the bus.
6
Appellants were not paid by appellee for the time spent riding the buses or vans. There were no allegations that appellee, Turner-Austin, or any representative of appellee ever discussed with appellants whether they would be paid for the time waiting for or riding the authorized buses, nor were there any requests by appellants to be paid for this time.
II. DISCUSSION
7
We review the district court's grant of summary judgment de novo. Gibson v. RTC, 51 F.3d 1016, 1020 (11th Cir.1995). This appeal presents a question of statutory interpretation. Section 4(a) of the Portal-to-Portal Act, 29 U.S.C. § 254(a), exempts certain activities from compensation under the FLSA, 29 U.S.C. §§ 201 et seq. The question before us is whether appellants' time spent riding the buses or going through airport security constitutes such an exception. The Act exempts the following activities from compensation:
8
(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and
9
(2) activities which are preliminary to or postliminary to said principal activity or activities,
10
which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities . . . .
29 U.S.C. § 254(a).2
11
Under the plain meaning of section 254(a), this case pivots on whether appellants are engaging in any work-related activity before arriving at their work sites inside the airport tarmac. If appellants were merely traveling to their "actual place of performance of the principal activit[ies]" before beginning any work activity, then section 254(a)(1) exempts such traveling from compensation under the FLSA. But, if appellants, by boarding those buses, going through security, or carrying their personal safety equipment, are engaging in work-related activity that is "integral and indispensable" to their work, then any travel afterwards is compensable. IBP, Inc. v. Alvarez, 546 U.S. 21, 37, 126 S.Ct. 514, 525, 163 L.Ed.2d 288 (2005) ("[A]ny activity that is `integral and indispensable' to a `principal activity' is itself a `principal activity' under [29 U.S.C. § 254(a)] of the Portal-to-Portal Act. Moreover, during a continuous workday, any walking time that occurs after the beginning of the employee's first principal activity is excluded from the scope of the provision, and as a result is covered by the FLSA.").
12
a) Travel Claim
13
The district court found that it is "undisputed that the actual place of performance of the principal activity or activities which [appellee] employed [appellants] to perform was the Project jobsite at MIA's North Terminal," and that it "is also undisputed that [appellants] did not perform any work either when waiting for the buses or while they were riding the buses." We find nothing in the record to contradict this conclusion. As stated above, the parties disagree as to whether appellants were required to carry their personal safety gear on the buses. But we do not find this dispute to be material to the issue at hand because our analysis of the Portal-to-Portal Act would be the same regardless. See Danskine v. Miami Dade Fire Dep't, 253 F.3d 1288, 1292-93 (11th Cir.2001) ("A factual dispute is genuine only if the evidence is such that a reasonable factfinder could return a verdict for the non-moving party.") (internal quotations and citation omitted).
14
The Department of Labor has issued interpretive statements giving examples of non-compensable travel under § 254(a). These statements are not promulgated regulations because Congress did not authorize the Secretary of Labor to issue regulations regarding the scope of the exemptions. 29 C.F.R. § 790.1(c); see Gonzales v. Oregon, 546 U.S. 243, 126 S.Ct. 904, 914-15, 163 L.Ed.2d 748 (2006) ("Deference in accordance with Chevron, however, is warranted only when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.") (citation and quotation omitted).
15
Here, however, the illustrative examples are persuasive and should be given due deference. See Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944) ("[R]ulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control."). In this case, the DOL's interpretation of § 254(a) speaks directly to the issue at hand:
16
Examples of walking, riding, or traveling which may be performed outside the workday and would normally be considered "preliminary" or "postliminary" activities are (1) walking or riding by an employee between the plant gate and the employee's lathe, workbench or other actual place of performance of his principal activity or activities; (2) riding on buses between a town and an outlying mine or factory where the employee is employed; and (3) riding on buses or trains from a logging camp to a particular site at which the logging operations are actually being conducted.
17
29 C.F.R. § 790.7(f).
18
The plain language of section 254(a)(1) excludes "walking, riding, or traveling to and from the actual place of performance of the principal activity or activities." The appellants' claim regarding the time spent on the employer vehicles both before and after the security check point fits squarely within this statutory exception, and the administrative interpretation of the statute also specifically addresses the question of transportation to and from the work site. The fact that the workers were required to ride authorized transportation after the security gate but the transportation to the security gate was optional is not relevant to the outcome of this case because even mandatory travel time is exempted from compensation under the Portal-to-Portal Act. We therefore hold that the time appellants spent traveling on the vehicles both before and after the security check point is exempt from compensation under the FLSA.3
19
b) Security Screening Claim
20
Unlike the time spent riding the employer vehicles, the time appellants spent going through airport security is not exempted under § 254(a)(1), so we must determine if this security screening is exempted under another provision.4 Section 254(a)(2) exempts "activities which are preliminary to or postliminary to said principal activity or activities." The Supreme Court has interpreted this section to apply when an activity before or after the principal work activity is not an "integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by Section [254(a)(1)]." Steiner v. Mitchell, 350 U.S. 247, 256, 76 S.Ct. 330, 335, 100 L.Ed. 267 (1956).
21
The former Fifth Circuit analyzed several factors to determine whether preliminary or postliminary activities are so "integral and indispensable" as to be compensable. Dunlop v. City Elec., Inc., 527 F.2d 394, 398-400 (5th Cir.1976).5 The factors to be considered are: (1) whether the activity is required by the employer, (2) whether the activity is necessary for the employee to perform his or her duties, and (3) whether the activity primarily benefits the employer. Id. at 401. In this case, the screening was required by the FAA, and appellee had no discretion as to whether its employees would be screened. See 49 C.F.R. § 1540.17; see also Civil Aviation Security Rules, 67 Fed.Reg. 8340 at 8354 (Feb. 22, 2002). So although the screening was necessary for the employees to perform their work, appellee did not primarily—or even particularly—benefit from the security regime.
22
Appellants place great weight on the necessity of going through the screening in order to do their jobs. But the "integral and indispensable" test is not a but-for test of causal necessity. "[T]he fact that certain preshift activities are necessary for employees to engage in their principal activities does not mean that those preshift activities are `integral and indispensable' to a `principal activity' under Steiner." IBP, 546 U.S. at 40-41, 126 S.Ct. at 518. If mere causal necessity was sufficient to constitute a compensable activity, all commuting would be compensable because it is a practical necessity for all workers to travel from their homes to their jobs. If the Portal-to-Portal Act is to have any meaning at all, its terms cannot be swallowed by an all-inclusive definition of "integral and indispensable."6
23
In IBP, the Supreme Court addressed whether the time spent waiting to don protective clothing on the employer's premises before engaging in productive labor was compensable under the Portal-to-Portal Act. IBP, 546 U.S. at 24, 126 S.Ct. at 518. The Court held, in part, that the time workers spent waiting to don protective gear necessary for productive labor was not itself "integral and indispensable" to a "principal activity." IBP, 546 U.S. at 42, 126 S.Ct. at 528.
24
This circuit has not interpreted the Portal-to-Portal Act in a published opinion since the Supreme Court decided IBP.7 The statutory language of the exemptions does not allow for a clean analytical distinction between those activities that are "integral and indispensable" and those that are not. But it is clear to us from the Act's language and history that the activity in question must be work in the benefit of the employer, and that the security screening mandated by the FAA in this case is not compensable work. We therefore hold that the time appellants spent going through the mandatory security screening is not compensable under the FLSA because that screening is not "integral and indispensable" to a principal activity under IBP, Steiner, or Dunlop.
III. CONCLUSION
25
For the reasons stated above, we AFFIRM the district court's grant of summary judgment in this case.
Notes:
1
The district court granted summary judgment to appellee regarding Plaintiff Jose Cabrera on the ground that Cabrera was never employed by appellee nor had any joint employer relationship. This ruling is not appealed
2
The terms of § 254(a) are limited by § 254(b), which allows compensation provided by contract or custom. But the only evidence that appellants point to regarding custom is the CRR, which requires workers to have identification and prohibits unauthorized vehicles within the airport. The CRR does not amount to a contract or custom that would limit the effect of § 254(a). Appellants do not assert that § 254(b) applies either
3
Circuits which have addressed the issue concurSee Smith v. Aztec Well Servicing Co., 462 F.3d 1274 (10th Cir.2006) (holding that gas-drillers in New Mexico were exempt from FLSA compensation for travel that ranged from thirty minutes to three-and-a-half hours each way); Reich v. New York City Transit Auth., 45 F.3d 646, 651 (2d Cir.1995) (holding that dog handlers' commutes are not compensable just because they bring their dogs into work, and also noting that the Portal-to-Portal Act exemptions "properly protect employers from responsibility for commuting time and for relatively trivial, non-onerous aspects of preliminary preparation, maintenance and clean up"); Vega v. Gasper, 36 F.3d 417 (5th Cir.1994) (holding that the four hours workers spent traveling on their employer's bus each day was not compensable under the Act); and Ralph v. Tidewater Constr. Corp., 361 F.2d 806 (4th Cir.1966) (holding that time workers spent traveling on an employer's boat to a construction site was not compensable under the Act).
4
The district court specifically ruled that time spent in security screening was not compensable under the FLSA, and the appellants appealed the court's order regarding the contested traveling time, which logically includes the entire time spent in security screening
5
The Eleventh Circuit has adopted as precedent the decisions of the former Fifth Circuit rendered prior to October 1, 1981See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir.1981) (en banc).
6
The legislative history of the Portal-to-Portal Act underscores the scope of the exemptions from compensation. In 1946, the Supreme Court decidedAnderson v. Mt. Clemens Pottery Co., holding that employees were entitled to compensation for the time they spent walking from the time clock to the workstation. 328 U.S. 680, 690-91, 66 S.Ct. 1187, 1194, 90 L.Ed. 1515 (1946). The year after Anderson was decided, Congress passed the Portal-to-Portal Act specifically exempting travel time—even within the employer's premises—from FLSA compensation requirements when the workers had not yet engaged in productive activity. See IBP, 546 U.S. at 26, 126 S.Ct. at 519.
7
Appellants rely on an unpublished decision of this court interpreting the Portal-to-Portal ActBurton v. Hillsborough County, 181 Fed. Appx. 829 (11th Cir.2006) (unpublished). Unpublished opinions are not controlling authority and are persuasive only insofar as their legal analysis warrants. See United States v. Rodriquez-Lopez, 363 F.3d 1134, 1138 n. 4 (11th Cir.2004). Burton is not persuasive because its facts are materially different from this case.
In Burton, the county employees' duties required them to drive the county vehicles to and from various public works locations and to always return the county vehicle to a secured county facility overnight. This court found that the time the employees spent driving from the secured county location to the various work sites was compensable under the FLSA because picking up and delivering the county vehicles to the county lots was integral and indispensable to the employees' principal activities. Burton, 181 Fed.Appx. at 837. In addition, Burton found that the vehicles served as satellite offices for those employees to do their jobs at the various sites and tools necessary for the work were locked in the county vehicles. Id. In Burton, driving the vehicles was not merely part of the employees' commute to the principal place of performance but rather an aspect of that job performance.
Furthermore, Burton concerned the interpretation of an amendment to the Act not relevant to this case. Burton examined the Employee Commuting Flexibility Act of 1996, which amended the Portal-to-Portal Act by adding the following language:
For purposes of this subsection, the use of an employer's vehicle for travel by an employee and activities performed by an employee which are incidental to the use of such vehicle for commuting shall not be considered part of the employee's principal activities if the use of such vehicle for travel is within the normal commuting area for the employer's business or establishment and the use of the employer's vehicle is subject to an agreement on the part of the employer and the employee or representative of such employee.
29 U.S.C. § 254(a).
Although the Burton court applied the same "integral and indispensable" analysis that is at issue here, Burton's conclusion that the time spent by the employees driving their county vehicles is compensable does not support the same conclusion in this case. Not only are the relevant facts in Burton easily distinguishable, we emphasize that as an unpublished case, Burton's analysis does not bind us.
BLACK, Circuit Judge, concurring:
26
I concur in the result. I agree that the Appellants are not entitled to compensation for the nonmandatory time spent traveling from the parking lot to the security checkpoint. They are also not entitled to compensation for the mandatory time spent from the security checkpoint to their official job sites. | 01-03-2023 | 04-27-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1625007/ | 15 So. 3d 588 (2009)
MYERS
v.
STATE.
No. 2D09-3233.
District Court of Appeal of Florida, Second District.
July 21, 2009.
Decision without published opinion Habeas Corpus denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625026/ | 522 So. 2d 1062 (1988)
Clevent D. WILCOX, Appellant,
v.
The STATE of Florida, Appellee.
No. 86-2861.
District Court of Appeal of Florida, Third District.
April 12, 1988.
*1063 Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Ralph Barreira, Asst. Atty. Gen., for appellee.
Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
NESBITT, Judge.
Clevent D. Wilcox was convicted for the unlawful possession of a firearm by a convicted felon in violation of section 790.23, Florida Statutes (1985). At trial, the judge denied Wilcox's motions for judgment of acquittal at the conclusion of the state's evidence and at the close of all the evidence and his request to instruct the jury that knowledge of the gun's presence is an essential element of the crime involved. Wilcox appeals.
Wilcox was observed entering a Metrorail station accompanied by his girlfriend. After climbing over the turnstile without paying the fare, they ascended the stairs leading to the passenger-loading platform and seated themselves on a bench to wait for a train. Police officers pursued to apprehend them for fare evasion. As the officers approached the pair, they advised Wilcox that he was under arrest; Wilcox immediately grabbed the canvas tote bag which was on the seat between him and his girlfriend. Upon examining the contents of the bag, the police officer discovered a handgun. Wilcox was arrested and charged with the unlawful possession of a firearm by a convicted felon. At trial, Wilcox's girlfriend testified that she had placed the gun in his tote bag the night before the arrest without advising him.
To sustain a conviction for violation of section 790.23, there must be proof that the defendant is a convicted felon, that the object found was a firearm, and that the defendant was in possession of the weapon. § 790.23(1), Fla. Stat. (1985). After Wilcox stipulated to the first two elements, the only element remaining to be proved was that Wilcox was in possession of the gun. Possession may be either actual or constructive. See Hively v. State, 336 So. 2d 127 (Fla. 4th DCA 1976); Willis v. State, 320 So. 2d 823 (Fla. 4th DCA 1975). Actual possession exists where an accused has physical possession of the prohibited object and knowledge of such physical possession. Hively, 336 So.2d at 129. Constructive possession exists where the accused, while without physical possession of the prohibited object, knows of its presence on or about his premises and has the ability to maintain control over the prohibited object. Id. Because Wilcox did not have the gun on his person, there must be proof that he had constructive possession of the weapon.
Wilcox claims that he is entitled to a judgment of acquittal because the state failed to prove that the gun was in his possession. He contends that his girlfriend had complete and independent access to his tote bag which thereby constituted joint control over its contents. If there was joint control or access to the tote bag, as Wilcox contends, there must be direct evidence that he knew the gun existed and had the ability to maintain control over it. See Smith v. State, 279 So. 2d 27 (Fla. 1973); Coley v. State, 393 So. 2d 60 (Fla. 3d DCA 1981); Clark v. State, 359 So. 2d 458 (Fla. 3d DCA 1978), cert. denied, 366 So. 2d 880 (Fla. 1979). However, if he had exclusive possession and control of the bag, his knowledge of the gun may be inferred from the circumstances. Fedor v. State, 483 So. 2d 42 (Fla. 2d DCA), review denied, 492 So. 2d 1331 (Fla. 1986); Frank v. State, 199 So. 2d 117 (Fla. 1st DCA 1967); Maloney v. State, 146 So. 2d 581 (Fla. 2d DCA 1962).
When considering a motion for judgment of acquittal, the court construes all facts adduced in evidence as admitted by the defendant and draws every conclusion favorable to the state which is fairly and reasonably inferable from that evidence. Spinkellink v. State, 313 So. 2d 666, 670 (Fla. 1975), cert. denied, 428 U.S. 911, 96 S. Ct. 3227, 49 L. Ed. 2d 1221 (1976). Although both Wilcox and his girlfriend testified that they had equal access to and *1064 use of the tote bag, the evidence shows that it belonged to Wilcox. Wilcox's girlfriend claims she did not advise Wilcox that she had placed the gun in the bag and he claims that he was not aware that it was there. However, when the police officers approached him, he immediately grabbed the bag. Viewing this evidence in the light most favorable to the state, the trier of fact might disbelieve the testimony of the defendant and his girlfriend and conclude that Wilcox had exclusive possession of the bag and knew about the weapon's existence. Thus, the trial court correctly denied the motions for judgment of acquittal.
Having concluded that Wilcox was properly denied judgment of acquittal, it is necessary to determine whether he had joint or exclusive possession of the tote bag and whether he had the requisite knowledge to establish possession. These issues were for the jury to decide.
Wilcox contends that the trial court erred in denying his request that the jury be instructed on the knowledge element necessary to convict him of the offense of unlawful possession of a firearm by a convicted felon. We agree. Just as in cases involving the possession of drugs, in order to prove possession of a firearm, there must be evidence to support a finding that the defendant had knowledge of the presence of the gun and the ability to exercise control over it. Parnell v. State, 438 So. 2d 407 (Fla. 4th DCA 1983); see Maloney, 146 So.2d at 581; Hively, 336 So.2d at 127 (knowledge of presence of drugs is required to prove constructive possession); see also Broughton v. State, 12 F.L.W. 2137 (Fla. 1st DCA September 3, 1987) (evidence that defendant knew of firearm was sufficient to prove possession). Although neither the standard jury instruction, Fla. Std.Jury Instr. (Crim.), Felons Possessing Weapons, at 112 (1987), nor section 790.23 states that it is an essential element of the crime, knowledge, either actual or constructive, is required to prove possession, and the jury must be instructed accordingly. Frank, 199 So.2d at 117. Because the standard jury instruction for possession of a firearm by a convicted felon does not provide guidance in this area, the explanation of the degree of knowledge required to prove possession contained in the standard jury instruction for narcotics violations should be considered when framing an appropriate instruction in the present case.[1]See Fla.Std.Jury Instr. (Crim), Drug Abuse Sale, Manufacture, Delivery, or Possession with Intent, at 219; Possession, at 225; Possession of Drug Paraphernalia, at 238 (1987). In conclusion, we observe the rare but commendable candor of the state's counsel in conceding error in the failure of the trial court to instruct on this issue.
For these reasons, the order denying Wilcox's motion for judgment of acquittal is affirmed, but the order denying the motion for a new trial is reversed with directions to award him a new trial.
NOTES
[1] "Possession" is defined in the Standard Jury Instructions for narcotics violations as follows:
To "possess" means to have personal charge of or exercise the right of ownership, management or control over the thing possessed.
Possession may be actual or constructive. If a thing is in the hand of or on the person, or in a bag or container in the hand of or on the person, or is so close as to be within ready reach and is under the control of the person, it is in the actual possession of that person.
If a thing is in a place over which the person has control or in which the person has hidden or concealed it, it is in the constructive possession of that person.
Possession may be joint, that is, two or more persons may jointly have possession of an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article.
If a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed.
If a person does not have exclusive possession of a thing, knowledge of its presence may not be inferred or assumed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625044/ | 15 So. 3d 591 (2009)
W.C.S.
v.
R.R.
No. 2D07-5867.
District Court of Appeal of Florida, Second District.
June 19, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625038/ | 769 S.W.2d 419 (1989)
298 Ark. 603
ARKANSAS STATE BOARD OF EDUCATION, et al., Appellants,
v.
MAGNOLIA SCHOOL DISTRICT NO. 14 OF COLUMBIA COUNTY, Appellees.
No. 88-261.
Supreme Court of Arkansas.
May 8, 1989.
Tim Humphries Asst. Atty. Gen., Little Rock, for appellants.
Rita S. Looney, Samuel A. Perroni, Little Rock, for appellees.
NEWBERN, Justice.
This is an appeal from an order certifying the case as a class action. Appeals of class action certifications, although interlocutory, are specifically permitted by Ark. R.App.P. 2(a)(9); Ford Motor Credit Co. v. Nesheim, 285 Ark. 253, 686 S.W.2d 777 (1985). The appellee, who is the Magnolia School District No. 14 of Columbia County, sought to have the appellants, who are the Arkansas State Board of Education and its members in their individual and representative capacities, enjoined from using state *420 school money to satisfy obligations of the Little Rock and South Conway school districts resulting from federal court desegregation rulings. The Magnolia board was granted class action certification upon its claim to represent all other Arkansas school districts similarly situated. The state board appeals from the certification but raises only issues of sovereign immunity and standing to sue. We dismiss the appeal because these issues are not proper ones to be raised pursuant to Rule 2(a)(9).
The state board argued sovereign immunity and lack of standing in a motion for dismissal or summary judgment. It did not wait for the chancellor to rule on the motion but appealed her order certifying the class, arguing the positions they asserted in their motion. No issues of numerosity or common question of law or fact are even discussed.
The state board argues the chancellor erred in certifying the class because she lacked jurisdiction, given the claims of sovereign immunity and the Magnolia board's lack of standing as a member of the class. The only case cited in support of the argument that the chancellor lacked jurisdiction to certify the class because of a failure of standing is O'Shea v. Littleton, 414 U.S. 488, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974), which did not so hold but noted in obiter dicta that the members of the purported class had not shown the requisite "case or controversey" for federal jurisdiction. There had not even been a class certification proceeding in the U.S. district court. Class action certifications are not appealable under the federal rule, and the citation is of no benefit to the position asserted here by the state board.
We might have been willing to treat this appeal as a request for a writ of prohibition had we concluded that the chancery court lacked jurisdiction. We have been provided no authority whatever to the effect that the points raised, i.e., the defenses of sovereign immunity and lack of standing would, if proven, deprive the court of jurisdiction, nor are we aware of any such authority in this court.
Our holding in the Ford Motor Credit Co. case was premised, in part, on the fact that the certification issue should be separately appealable because it is separable from the merits of the case. It was not our intention in changing Rule 2(a) to allow any issue to be presented here under the guise of an appeal of a class certification other than ones concerning compliance with Ark.R.Civ.P. 23.
In an interlocutory appeal from a certification order we will hear only argument on whether the judge abused her discretion in certifying the class under Art.R.Civ.P. 23. The state board's points may be raised on appeal from a final judgment.
Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625047/ | 522 So. 2d 1288 (1988)
David DILL and Anna Dill
v.
STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et al.
No. 87-CA-708.
Court of Appeal of Louisiana, Fifth Circuit.
March 14, 1988.
*1289 Chaisson & Chaisson, Destrehan, for plaintiffs/appellees.
William J. Doran, Jr., Sp. Asst. to General Counsel, State of La., Dept. of Transp. and Development, Baton Rouge, for defendants/appellants.
Before BOWES, GRISBAUM and GOTHARD, JJ.
GOTHARD, Judge.
Defendant-appellant, the Louisiana Department of Transportation and Development, appeals a judgment of the trial court finding DOTD solely at fault and awarding plaintiffs damages as a result of a motor vehicle accident.
This matter arose out of a two car accident which happened at milepost 5 on La. Hwy. 48 (locally known as Brown's Curve on River Road) on July 18, 1985, at approximately 12:05 p.m. in St. Charles Parish, Louisiana. The plaintiffs, Mr. and Mrs. David Dill, were proceeding down river in an easterly direction with the curve being to their left. The other party involved in the accident, Warren C. Savoie, was proceeding *1290 up river in a generally westerly direction with the curve being to his right and the levee being to his left. It was lightly raining and the roadway was wet. While attempting to negotiate the curve, Mr. Savoie, who was then going the posted speed limit of 30 miles per hour, felt the back end of his car start to slide. Savoie lightly applied his brakes to slow down a little more and he regained control of his car. Since he had drifted somewhat into the easterly lane, however, the plaintiffs' vehicle impacted with his at the center of the curve in the plaintiffs' lane with both vehicles remaining at the point of impact. At trial, Mr. Savoie testified that he was attentive and his vision clear and that he travelled this roadway often; however, he could not avoid the accident once he went into the slide.
The plaintiffs were injured in the crash, Mrs. Dill more severely. Mr. Dill suffered a deep laceration of the scalp which required stitches. Mrs. Dill's injuries resulted in a fracture of the cervical odontoid C-2, fractures of six left ribs, and synovitis of the right knee. Mrs. Dill's injuries resulted in a 5% permanent anatomical disability and a 50% permanent functional disability to her whole body. As a consequence of Mrs. Dill's fractured neck, surgery was necessary to install a device called a halo, in order to immobilize the patient's upper torso neck and head, to allow the break to heal. Additional surgery was needed to remove the halo, after which, on October 17, 1985, Mrs. Dill was fitted with a Philadelphia collar. The Philadelphia collar was removed on December 12, 1985. At present Mrs. Dill must wear a soft cervical collar during situations where there is a possibility of reinjury, such as riding in a car. Mrs. Dill continues to suffer from dizziness. The synovitis of the right knee has left residual pain and discomfort to Mrs. Dill when walking, bending, and descending or ascending stairs.
During Mrs. Dill's convalescence, it was discovered that Mr. Dill had cancer which required surgery.
After finding DOTD 100% at fault,[1] the trial court made the following awards: (1) Mrs. Dill$237,297.60$200,000 for the pain and suffering associated with the broken neck bone; $15,000 for the pain and suffering associated with the six broken ribs; $10,000 for the pain and suffering associated with the knee injury; and reimbursement of medicals; (2) Mr. Dill$40,287.50$10,000 for the pain and suffering associated with the head injury; $30,000 for loss of consortium; and $287.50 for medical bills.
On appeal, DOTD assigned six specifications of error dealing with the trial court's assessment of liability and damages in two arguments. The plaintiffs answered the appeal urging an increase in their award of damages. Basically, DOTD's appeal requires us to determine the following two issues: (1) Was La. Hwy. 48 defective and, if so, was this defect solely or partially the cause of the accident, and (2) Were the awards made to plaintiffs excessive?
LIABILITY
Two theories were presented at trial as to the cause of the accident: (1) Driver fault (argued by DOTD's expert); and, (2) Defective roadway (expounded by plaintiffs' expert). The trial judge chose to accept the latter explanation of the accident.
On appeal, DOTD contends that at the time of the accident, the substandard roadway at Brown's Curve was properly marked with an advance curve 30 mile per hour advisory speed sign and flashing amber beacon. As such, the roadway's condition, according to DOTD, did not constitute a defect; the sole cause of the accident was the fault of Mr. Savoie in that he was inattentive, or exceeding a safe speed for the existing road and weather conditions. Since the trial judge's findings were completely contrary to DOTD's position, in order for appellant to prevail, it must demonstrate that the trial court was manifestly erroneous in its factual determinations, *1291 LSA-C.C.Art. 2324.1; Arceneaux v. Domingue, 365 So. 2d 1330 (La.1978), and also that the court abused its much discretion in making its damage awards. Reck v. Stevens, 373 So. 2d 498 (La.1979).
LA. 48 is a two-lane, 20 foot wide bituminous surfaced rural highway. At the time of the accident it was classified as a Class 2 Arterial Type Highway on the basis of an approximate 11,000 traffic volume per day. The applicable state highway standards published by DOTD as introduced through the expert's testimony require a degree of curvature at Brown's Curve approximately one-half of that presently existing. These standards further require a twelve foot lane width and a four foot shoulder, rather than the ten foot lane width and narrow unsurfaced shoulders at Brown's Curve. The superelevation or banking in the curve's westbound lane (which is the cross slope used in a curve to compensate for the curvature) was measured and found to be substandard for lack of a constant rate throughout the curve which produced a wavy surface and fluctuating coefficient of friction. There is considerable wear, pot marks, cracking, and deterioration of the roadway in the westbound lane, especially bad at the right hand wheel path.
The ball-bank indicator test which measures side force as a vehicle travels around a curve indicated that Brown's Curve was correctly posted with a 30 mile per hour advisory speed in each direction under dry weather conditions. The critical speed or speed at which a vehicle negotiating the curve would slide was estimated at 45-50 miles per hour by DOTD's expert witness, Olin K. Dart. The plaintiffs' expert witness, Duane T. Evans, estimated the critical speed at 38-41 miles per hour assuming a uniform surface and condition, but at 30 miles per hour in consideration of the severe degree of curvature, lane width, superelevation, wear of roadway, and wet pavement.[2] In Mr. Evans' opinion the fluctuating rate of superelevation and the pot marked and wet pavement of the curve caused a loss of the coefficient of friction which combined with the severe degree of curvature and narrow road width to cause Mr. Savoie's vehicle to slide into the eastbound lane. In Mr. Dart's opinion it was possible that the Savoie vehicle slid at 30 miles per hour due to the roadway conditions as described by Mr. Evans, but he thought it would take some steering input from the driver to cause the critical condition. Mr. Dart felt that the deficient roadway conditions at this curve were not sufficient to cause any serious decline in friction available to a vehicle going through the curve, that the curve actually had enough friction so that no superelevation was needed to hold a vehicle on the curve, and that a vehicle's suspension system would compensate for the bumps and potmarks on the roadway.
DOTD is not an insurer of the safety of all motorists on the road, but it has the duty to maintain the roads and highways in a reasonably safe condition for a reasonably prudent driver. Sinitiere v. Lavergne, 391 So. 2d 821 (La.1980). The duty to maintain reasonably safe highways extends to the protection of those people who may be foreseeably placed in danger by an unreasonably dangerous condition. Sinitiere v. Lavergne, supra. This duty imposed on DOTD is the same under either strict liability or negligence. See Kent v. Gulf States Utilities Co., 418 So. 2d 493 (La.1982); Efferson v. State, Through T. and Dev., 463 So. 2d 1342 (La.App. 1 Cir. 1984), writs denied, 465 So. 2d 722 (1985). Whether the Department has breached a duty, that is, whether the roadway at the scene of the accident was an unreasonably dangerous condition will depend upon the particular facts and circumstances of each case. Myers v. State Farm Mut. Auto. Ins. Co., 493 So. 2d 1170 (La.1986).
The St. Charles Parish Sheriff's Office produced a total of 72 accident reports of accidents occurring on LA. 48 at *1292 Brown's Curve from January 1, 1978 to July 2, 1985. Twenty-three of these accidents occurred in 1984 with approximately ten occurring in the west bound lane in the same way as the instant accident, three at 35 miles per hour, one at 15 miles per hour, and one at 25 miles per hour. Deputy Joey Chaisson testified that the St. Charles Parish Sheriff's Office records contained only accidents reported by the St. Charles Parish Sheriff's Office, not accidents reported by Louisiana State Police. He also testified that copies of all St. Charles Parish Sheriff's Office accident reports are sent to Louisiana State Police Headquarters, which in turn supplies that information to the Highway Safety commission and the DOTD.
Also introduced at trial was a report dated May 18, 1982, prepared by Boyd T. Gautreaux, District Traffic Operations Engineer, District Two, DOTD, regarding Brown's Curve, which states:
Accident date compiled by Department personnel from information provided by the State Police revealed that a total of 23 accidents occurred in this vicinity during the three year period between January 1, 1978 and January 1, 1981. Of these, 12 accidents were run-off-the-road, six were sideswipes (opposite direction) and three were head-on collisions. Nine of these accidents occurred at night, eight occurred in wet weather, and 14 involved personal injury.
This particular location presents an abrupt change in horizontal alignment between two relatively straight sections of roadway. Although warning signs are posted there appears to be a problem of driver expectancy associated with this curve. The current accident pattern can be expected to worsen when the new Luling-Destrehan bridge is opened and traffic volumes increase as the area develops. This location is also the object of many citizen complaints received by this office.
Considering the accident frequency and expected increase in traffic volumes at this location, it is recommended that Brown's Curve be reconstructed to provide a more favorable alignment. Acquisition of right-of-way for this project will be necessary, but with the exception of fence relocation, no structures would be affected.
Attached to the report is a cost estimate for realigning Brown's Curve of $164,000. In response to this report, DOTD initiated State Project No. 282-02-31, to realign Brown's Curve and decrease the existing degree of curvature of Brown's Curve by approximately one-half, from 12° 30', to 60° 30'. In addition, plaintiffs' expert, Mr. Evans, offered his opinion that the curve could be easily widened by putting drainage pipes in the ditches and then widening the shoulders and roadbeds which would make the curve less dangerous.
Also introduced at trial was various correspondence from the St. Charles Parish President's Office in which the DOTD was advised of the dangerous conditions which exist on Brown's Curve.
The trial judge concluded, on the basis of the evidence and the testimony of the witnesses, including the experts, that:
".. the cause in fact of the accident was the defective condition of the roadway... [and that] the number of accidents... damages ... lawsuits ... and the requests by parish officials for state officials to repair the roadway, no other conclusion is plausible...."
In this connection, the trial judge, in a written opinion stated as follows:
"... a severe degree of curvature existed along with a superelevation of the curve ... in conjunction with a wet, worn pavement, all tended to prove that the condition of the highway contributed to the accident ... the collision was not one of heavy impact. The experts categorized the accident as a slow-speed collision. Testimony of other accidents was introduced ... The Boyd T. Gautreaux report of 1982, indicates that Brown's Curve is indeed a dangerous curve ... Mr. Dill ... was not negligent ... Mr. Savoie was driving ... the designated speed limit. Yet due to the curvature his vehicle went into the opposite lane and collided with the Dill vehicle ... In conclusion, *1293 I find 100% fault attributable to DOTD."
DOTD's expert placed the cause of the accident on the driver, citing driver error, and DOTD asks this court to apply a presumption of negligence to Mr. Savoie because he was ticketed for failure to maintain control of his vehicle and he pled guilty. DOTD argues that despite the substandard road condition of Brown's Curve that DOTD discharged its obligation to the motoring public by posting adequate warning devices to alert the ordinary motorists to the conditions in existence. DOTD's argument fails to demonstrate how the conclusion reached by the trial judge was clearly wrong. Both plaintiffs' vehicle and Mr. Savoie's were being operated at the posted speed limit (each driver testified that he was attentive and his vision clear), yet Mr. Savoie's vehicle began to slide into the eastbound lane as he entered the curve. The evidence shows that the roadway of Brown's Curve was substandard in curvature, superelevation, and was worn, pot marked, and cracked, especially bad in the westbound lane in which Mr. Savoie's vehicle was traveling. Mr. Evans explained that with these roadway conditions and the wetness of the pavement, that sliding would occur at the posted speed limit of 30 miles per hour. Although DOTD's expert disagreed, the trial judge found it more probative than DOTD's theory of the cause of the accident.
The lay testimony and the theory set forth by the plaintiffs' expert "furnishes a reasonable factual basis for the trial court's finding ... and reasonable inference of fact should not be disturbed upon review." Canter v. Koehring Co., 283 So. 2d 716 (La.1973). Therefore, we hold the trial court's finding of 100 percent liability against DOTD is correct.
DAMAGES
DOTD claims that the awards given plaintiffs were excessive. Plaintiffs claim they were inadequate.
As to Mr. Dill, the trial court's opinion provided:
... Mr. David Dill received a large cut on the forehead. He was also taken to RPMC ... His claim consists of personal injuries and loss of consortium.
The total medicals from RPMC regarding David Dill amount to $287.50. As to pain and suffering sustained in the accident, this Court is of the opinion that a general damage award of $10,000.00 would be adequate.
The loss of consortium proves more difficult to assess. Mr. Dill had to live without the services of his wife. It was around the time in question that David Dill learned that he had cancer. Obviously, this dreaded disease is unrelated to the accident.
Without any doubt, the outer parameters of the loss of his wife's services would be from July 18, 1985, until October 30, 1986. Said loss of services was more pronounced during the period that Mr. Dill had to undergo cancer surgery without the assistance of his spouse.
In summary, 15 months total were involved. It could safely be said that for approximately one year, Mr. Dill was deprived of his wife's ability to assist him in his needs brought on by cancer.... Deep, emotional wounding usually results. Wounding is more pronounced when a dreaded disease raises its ugly head and a need for help arises. This Court is of the opinion that a verdict of $30,000.00 would be fair and adequate.
As to Mrs. Dill, the trial court's opinion provided:
Following the accident, Mrs. Dill was immediately transported to RPMC and treated by Dr. V.J. Zeringue....
Dr. Zeringue is an orthopedic surgeon. He first saw Mrs. Dill in the emergency room where x-rays and evaluations indicated a fracture of the left chest ribs 5, 6, 7, 8, 9, and 10. The fracture of the spine was the major injury.... C-2, a bone in the cervical spine, has a bony prominence which projects upwards. The bony projection is called an odontoid. The odontoid acts as a pivot for the bone above the C-2 level. It acts as a post, and C-1 fits over this bony projection in a manner that allows C-1 to be held *1294 stable over the spinal cord. Rotation is thus permitted.
The doctor further explains that if the bony prominence is broken, the spine becomes unstable. With the foregoing instability, there exists a possibility of an abnormal shifting of C-1 which could compress the spinal cord resulting in paralysis and possible death to the patient.
The break in the odontoid of the C-2 was at the base of the odontoid. Treatment consisted of immediate immobilization requiring the use of a Philadelphia cervical collar. Several days later, on July 23, 1985, Mrs. Dill underwent surgery. Following this procedure, a "halo" device was installed on Mrs. Dill by screwing sharp screws through a ring and down into the skull bone and then attaching the ring to a chest support in order to support the cervical spine and immobilize the patient....
The rib fractures were from cortex to cortex with minimal displacement requiring no surgical procedures. Mrs. Dill was advised to rest, and conservative management was used.
Mrs. Dill was released from the hospital on August 2, 1985. Although ambulatory, she remained on muscle relaxants and medication. Home health care was provided Mrs. Dill until September 12, 1985, as there were many activities she was unable to perform. For example, sleeping became a chore and was accomplished by the use of a reclining chair.
When the "halo" device was removed from Mrs. Dill on October 17, 1985, it was replaced with the Philadelphia collar for continued cervical support. It should be noted that Mrs. Dill sustained facial scarring due to the removal of the four screws on the "halo" device, two in the back of her head hidden from view by the growth of hair, and two on the front side just below the hairline. On December 12, 1985, a soft cervical collar was recommended by Dr. Zeringue to replace the Philadelphia collar. Use of the soft collar was discontinued on or about February 6, 1986.
Evidence of Mrs. Dill's right knee injury was still present on February 2, 1986. This injury finally resolved itself by July 1, 1986 ...
Dr. Zeringue opines that the injury to Mrs. Dill's cervical spine makes her more susceptible to reinjury. She was indicated to have a 5% anatomical disability and a 50% functional disability in this regard ... Mrs. Dill complains of occasional dizziness which the doctor ascribes to the use of the "halo" device. At present, he believes further surgery will not be required.
The knee injury in and of itself was painful, and this discomfort made it difficult for Mrs. Dill to walk properly. For pain and suffering, I am of the opinion that an award of $10,000.00 is adequate for this resolved injury.
The rib fractures were also painful, and I am of the opinion that an award for pain and suffering in the amount of $15,000.00 would be fair for this resolved injury.
The foregoing, coupled with the spinal fracture, increases the pain in the neck. The likelihood of death or the uncertainty thereof causes great alarm. Most people with a so-called "broken neck" die. While not categorized as the foregoing, it is my opinion that the same amount of pain was and is experienced by Mrs. Dill.
This Court is impressed with the testimony of Mrs. Dill and sympathizes with her frustration. Being immobilized and in severe pain is serious enough, but to learn that one's mate has cancer at the same must have made Mrs. Dill feel helpless at a time she was obviously needed.
I am of the opinion that an award for pain and suffering in the amount of $200,000.00 is fair under these set of circumstances.
Both sides have cited us to other quantum cases for purposes of comparison under Reck v. Stevens, supra. Reck permits us to refer to a scale of prior awards only if the instant award is an abuse of discretion and the prior injuries are truly similar. Since we have found no abuse of discretion as regards Mrs. Dill's awards, nor as regards Mr. Dill's award for loss of consortium we will not discuss the cases cited as *1295 to these injuries. We have studied them, and other cases however, and note that the awards given here fall within the scale of prior awards. See, Villavaso v. State Farm Mut. Auto. Ins. Co., 424 So. 2d 536 (La.App. 4 Cir.1982); Scott v. Hospital Service Dist. No. 1, 496 So. 2d 270 (La.1986). Moreover, the awards do not appear to be an "abuse of discretion", and for this reason, we affirm the trial court awards for Mrs. Dill's general damages and Mr. Dill's award for loss of consortium. However, as to Mr. Dill's award for the scalp laceration, we find an abuse of discretion. In accordance with out review of the record and recent cases of similar injury, we feel general damages of $5,000.00 is the highest point reasonably within the discretion of the trial court, which is the amount suggested by the appellant DOTD. Accordingly, we reduce this award of general damages for the scalp laceration suffered by Mr. Dill to $5,000.00.
Therefore, for the foregoing reasons, we affirm the trial court's judgment except to amend the award of damages to Mr. Dill for his scalp laceration from $10,000.00 to $5,000.00.
REVISED AND AFFIRMED AS REVISED.
BOWES, Judge, dissenting.
I must respectfully dissent from the well-written opinion of my brothers. I acknowledge that La. Hwy. 48 at milepost 5 was not constructed as a modern highway and is in need of repair. However, the State was aware of these things and designated that section of the roadway for reconstruction. Before this could be accomplished, the State took every reasonable precaution, in my opinion, to warn motorists of the possible danger in this area. They posted large signs, reducing the speed limit from the normal 35 m.p.h. limit for other sections of River Road to 30 m.p.h., on the mounting for the curve sign; they also put up large chevrons, and placed a flashing light to get the attention of motorists and to warn them of the "sharp curve" condition of the roadway. They also placed a yellow "no passing" line in the curve.
Another important factor that I believe has been overlooked by the majority is that the record proves unequivocally that both motorists were thoroughly familiar with the roadway, having driven it many, many times, and, as experienced drivers through this area, should have been aware that driving at the posted speed limit could only be accomplished safely when normal and safe driving conditions prevail. At the time of the accident, it was raining and the road was wet and slippery. Mr. Savoie was not only ticketed by the police for failure to maintain control of his vehicle, but he also pled guilty to those charges.
Under these circumstances, I cannot find that the State should be found responsible when, in my opinion, enough warning devices had been placed at that location to warn all but the most inattentive drivers. If the roadway was the cause in fact for the instant accident, then all automobiles traveling at that particular location at that particular time would have had a problem staying on the roadway, and logic tells us there would have been many accidents. However, although plaintiffs provide us with statistics which indicate a relatively large number of accidents have taken place in the past at that location, the record is silent and there is absolutely no mention as to any others that took place on the day in question.
The major allegations against the DOTD are that the roadway was narrow, that it had narrow shoulders and that, somehow, this existing condition was a causative factor in this accident. The trial court, in its reasons for judgment, relied on the testimony of Mr. Duaine Evans, the plaintiff's expert, and concluded that because there was a severe degree of curvature in conjunction with a wet, worn, pavement that all of this tended to prove that the condition of the highway contributed to the accident. However, the court seemed to completely ignore the testimony of Mr. Olin Dart, DOTD's expert, whose long-standing *1296 qualifications in this field are eminent. The court also indicated that the Department recognized it as a dangerous curve, but did not ever address the question of whether or not the actions of the Department in placing all of the additional warnings on the curve would have been sufficient to warn a reasonably prudent motorist of the nature of the curve.
In my view, the court also did not adequately address the issue of driver error, especially under the weather conditions existing, and did not properly apply the jurisprudence which provides for a presumption of negligence when a driver is in the wrong lane of traffic and when he pleads guilty to a traffic violation which was the proximate cause of the accident. The court seemed to place more emphasis on the fact that the roadway is not up to modern day standards, which is the same issue that our Supreme Court addressed in the case of Myers v. State Farm Mutual Automobile Insurance Co., 493 So. 2d 1170 (La.1986) and the line of cases cited therein. Our jurisprudence has recognized that the failure of a public body, such as the State Department of Transportation, to update all of its highways to current standards does not establish the existence of a hazardous defect or prove that the subject roadway is unreasonably dangerous. Usry v. Louisiana Department of Highways, 402 So. 2d 240 (La.App. 4 Cir.1981); writ denied 404 So. 2d 1259 (La.1981); Roberts v. Winston Carriers, Inc., 304 So. 2d 818 (La. App. 3 Cir.1974), writs refused 309 So. 2d 341 (La.1975).
Our courts have also recognized that, when hazardous conditions exist, the DOTD may discharge this obligation to the motoring public by posting adequate warning devices that are sufficient to alert the ordinary motorist to the conditions in existence. See Gadman v. State, through Department of Transportation and Development, 493 So. 2d 661 (La.App. 2 Cir.1986), Opinion modified 497 So. 2d 1001 (La.1986); Kitchen v. Duke's Escort Service, 493 So. 2d 829 (La.App. 2 Cir.1986); Booth v. Potashnick Construction Co., 420 So. 2d 512 (La.App. 2 Cir.1982), writ denied, 423 So. 2d 1183 (La.1982); Vallery v. State, through Department of Transportation and Development, 480 So. 2d 818 (La.App. 3 Cir. 1985); writ denied, 481 So. 2d 1350 (La. 1986); Richardson v. Continental Insurance Company, 468 So. 2d 675 (La.App. 3 Cir.1985); writ denied, 474 So. 2d 1304 (La. 1985); Ponder v. Groendyke Transport, Inc., 454 So. 2d 823 (La.App. 3 Cir.1984); writ denied, 457 So. 2d 1195 (La.1984); writ denied, 457 So. 2d 1198 (La.1984); Chiasson v. Whitney, 427 So. 2d 470 (La.App. 5 Cir. 1983); writ denied 433 So.2d. 179 (La.1983); writ denied 433 So. 2d 180 (La.1983) and writ denied 433 So. 2d 183 (La.1983).
It seems obvious to me from a reading of the entire record that the major fault found with the DOTD was in the failure to reconstruct that roadway to modern day standards. The record clearly reflects that the Department had, in fact, planned to reconstruct certain segments of this roadway, but that this reconstruction had not yet taken place at the time of the accident. Meanwhile, the Department has taken every considerablee step to adequately mark the curve to warn reasonably prudent and attentive drivers of the roadway conditions.
The roadway conditions in the instant case are almost exactly parallel those conditions as described in the recent Supreme Court case of Myers v. State Farm Mutual Automobile Insurance Company, 493 So. 2d 1170 (La.1986):
The physical characteristics of Greenwell Springs Road are not unique. Many Louisiana roads have narrow shoulders and steep roadside ditches and are lined with trees, culverts, fences and other objects. Dr. Olin K. Dart, an expert in civil and traffic engineering and in accident reconstruction, testified that it would be physically and financially impossible to bring all of the State's roads up to modern standards. Mr. Hickey also believed that the State could not possibly meet such a burden. We agree. For this reason, the failure of DOTD to reconstruct *1297 the State's highways to meet modern standards does not establish the existence of a hazardous defect. Dagnall v. Louisiana Department of Highways, 426 So. 2d 276 (La.App. 4th Cir.), cert denied, 433 So. 2d 160 (La.1983); Devall v. Morgan, 424 So. 2d 522 (La.App. 5th Cir.1982), cert. denied, 427 So. 2d 1214 (1983); Usry v. Louisiana Department of Highways, 402 So. 2d 240 (La.App. 4th Cir.), cert. denied, 404 So. 2d 1259 (La. 1981). Id. at Page 1173.
In the instant case, the Department had taken reasonable steps and certainly the warnings in place on the date of the accident were adequate to warn a reasonably prudent driver of the roadway conditions. In my opinion, this roadway did not present an unreasonable risk of harm to a driver exercising ordinary care and reasonable prudence, and especially this is applicable to this local driver who, according to the record, was extremely familiar with this curve, so there was no question of his being "surprised" by its condition.
Our jurisprudence has consistently held that the Department of Transportation and Development is not responsible for every accident that occurs on state highways, nor is it an insurer of the safety of persons traveling thereon. The Department is only liable in cases where the state highway is unreasonably unsafe for persons exercising ordinary care and reasonable prudence. See Doucet v. State of Louisiana, Department of Highway, 309 So. 2d 382 (La.App. 3 Cir.1975); writ denied 312 So. 2d 340 (La. 1975); Laborde v. Louisiana Department of Highways, 300 So. 2d 579 (La.App. 3 Cir. 1974); writ denied 303 So.2d. 182 (La.1974).
In addition, in the instance case, we have the presumption of negligence on the part of the driver who had crossed the center line and who has pleaded guilty to a traffic citation. In this case, Mr. Savoie, who was formerly a defendant, was charged with failure to maintain control of his vehicle. This is covered in Louisiana R.S. 32:58 which provides that it is unlawful for a driver of any vehicle to negligently fail to maintain reasonable and proper control of his vehicle while it is operated on the public roads of the state. The evidence shows that Mr. Savoie has pled guilty to this offense, which brings this matter under the provisions of Louisiana R.S. 13:3739, which provides that proof of conviction shall create a rebuttable presumption in civil actions that the party in fact committed those acts essential to the commission of the offense. The record fails to reflect to me that this presumption was rebutted, nor did the trial judge find so.
In addition, our courts have consistently held that a person who crosses the center line, and is in an accident in the opposite lane of travel, is presumed to be negligent and bears the burden of exonerating himself from his presumed negligence. See Simon v. Ford Motor Company, 282 So. 2d 126 (La.1973); Brannon v. Shelter Mutual Insurance Company, 507 So. 2d 194 (La. 1987).
In my opinion, the roadway in question on the date of the accident with the warning devices in place did not present an unreasonable risk of harm to this particular local driver, who was very familiar with this curve, if he had been exercising ordinary care and reasonable prudence under the prevailing circumstances. Proximate cause of the accident and any resulting damages to the plaintiffs was the admitted negligence of Mr. Savoie. I would reverse the trial court's finding of liability on the part of the State of Louisiana, Department of Transportation and Development dismissing plaintiffs' case against this defendant.
Accordingly, I respectfully dissent.
NOTES
[1] Prior to trial, plaintiffs settled their claim against Warren Savoie, and DOTD entered into a consent judgment with Mr. Savoie dismissing with prejudice DOTD's third party demand against him.
[2] Mr. Evans defined safe speed as that speed at which most drivers should have no problems negotiating a curve under most conditions as compared to critical speed which is the speed at which, if exceeded, a vehicle will slide. Critical speed is normally calculated for the worst conditions, including wet conditions. | 01-03-2023 | 10-30-2013 |
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