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https://www.courtlistener.com/api/rest/v3/opinions/1625080/ | 126 F. Supp. 366 (1954)
In the Matter of the Application of Eugene Cuebas ARBONA, Relator,
v.
Frank F. KENTON, Warden of the Federal Detention Headquarters in New York City, Respondent.
United States District Court S. D. New York.
December 1, 1954.
*367 Reuben Terris, New York City, for relator.
J. Edward Lumbard, U. S. Atty., New York City, for respondent, George H. Bailey, Asst. U. S. Atty., New York City, of counsel.
WEINFELD, District Judge.
Eugene Cuebas Arbona petitions for a writ of habeas corpus to obtain his release from Federal Detention Headquarters where he is held pending a hearing on proceedings to remove him to the District of Puerto Rico for trial. The warrant of removal is sought upon an indictment[1] returned in the United States District Court for the District of Puerto Rico charging that petitioner and others conspired to commit offenses against the Government of the United States in Puerto Rico in violation of the Smith Act, 18 U.S.C. § 2385, and the general conspiracy statute, 18 U.S.C. § 371. The indictment charges that the conspiracy extended from March 10th, 1946 to the date of its filing October 27th, 1954.
Petitioner alleges that his detention is unlawful in that the Smith Act and the general conspiracy statute ceased to be applicable to Puerto Rico on July 25, 1952, when Commonwealth status was acquired under Public Law 600.[2] However his various contentions are stated, the substance of petitioner's argument is that once the Constitution of the Commonwealth of Puerto Rico went into effect,[3] Puerto Rico became an independent country, maintaining only a very limited and specified relationship to the United States; that this relationship, absent an effective saving clause in the statute which led to the creation of the Commonwealth, did not continue a right in the Government of the United States to prosecute for violations of its criminal statutes committed in Puerto Rico prior to its new status. The saving clause, Section 4 of Public Law 600, continued 48 U.S.C.A. § 734, which provides:
"The statutory laws of the United States not locally inapplicable * * * shall have the same force and effect in Puerto Rico as in the United States * * *."
But petitioner argues that the Smith Act is locally inapplicable because the United States Government ceased to exist in Puerto Rico on July 25th, 1952, when the Commonwealth Constitution went *368 into effect that except for matters pertaining to dual citizenship, currency, customs, foreign relations and defense against outside aggression, the Legislative Assembly of Puerto Rico has the right to legislate.
The contention is without merit, and is in conflict with two decisions of the District Court for the District of Puerto Rico.[4] These decisions, both rendered subsequent to the establishment of the Commonwealth, applied the statutes here in question to crimes committed in Puerto Rico. Carrion v. Gonzalez, D.C. P.R., No. 8994C, 125 F. Supp. 819, is especially pertinent, for it held the Smith Act applicable to one of petitioner's co-defendants. These authorities are in accord with the legislative enactments that established the Commonwealth of Puerto Rico.
By enacting Public Law 600 Congress offered a compact to the people of Puerto Rico, which, if approved by them, would lead to the establishment of the Commonwealth of Puerto Rico.[5] The compact was overwhelmingly approved at a referendum held June 4, 1951,[6] and became the basic charter, establishing the Commonwealth's position in the Federal System.
Establishment of the new Constitution repealed many pre-existing laws relating to matters of purely local concern, but continued many statutes governing the relations of Puerto Rico to the United States.[7] Section 4 of Public Law 600[8] saves certain sections of Title 48 U.S. C.A. relating to Puerto Rico. In addition to Section 734, which extends statutes of the United States to Puerto Rico generally, the sections thus saved include: Section 749, extending laws of the United States relating to navigable waters; Section 863, setting forth provisions for the United States District Court for the District of Puerto Rico in addition to the provisions of Title 28 U.S.C.;[9] Section 867, establishing the qualifications for federal jurors; Section 874, providing: "All judicial process shall run in the name of `United States of America, ss, the President of the United States,' * * *. All officials shall be citizens of the United States, and, before entering upon the duties of their respective offices, shall take an oath to support the Constitution of the United States and the laws of Puerto Rico." In addition to these sections, petitioner concedes that "the constitution of Puerto Rico gives the United States exclusive rights" with regard to currency, customs, foreign relations and defense against outside aggression.
These hallmarks of governmental power, together with the fact that citizens of Puerto Rico are citizens of the *369 United States, whose rights to due process of law are protected by the Federal Constitution,[10] lead inescapably to the conclusion that there remains a Government of the United States in Puerto Rico.[11] The people of Puerto Rico, by accepting the compact offered by the Puerto Rican Federal Relations Act, have consented to the continuity of relationship with this government and to the continued application of statutes saved under that compact. In this connection Chief Judge Magruder, long a student of Puerto Rican affairs, has commented:
"* * * Congress has reserved the power, without future amendment of the Puerto Rican Federal Relations Act, to enact general legislation applicable to Puerto Rico as well as to the rest of the United States. * * * An instance of this type of legislation is the Selective Service Act of 1948 which applies to the people of Puerto Rico in the same way as it applies to the people of the States of the Union. In enacting such legislation it would no more be necessary to obtain the consent of the Commonwealth of Puerto Rico than it would be to obtain the consent of the State of New York."[12]
Indeed, recognition of the attributes of sovereignty of the United States Government in Puerto Rico is found in the Commonwealth Constitution, which provides:
"Any amendment or revision of this Constitution shall be consistent with the resolution enacted by the Congress of the United States approving this Constitution, with the applicable provisions of the Constitution of the United States, with the Puerto Rican Federal Relations Act, and with Public Law 600, Eighty-first Congress, adopted in the nature of a compact."[13]
Thus, the indictment clearly charges an offense against the United States upon which removal may be had.
This conclusion finds further support in the Preamble to the Puerto Rican Constitution which states that the Commonwealth is created "within our union with the United States of America," thus recognizing that the Commonwealth is a political subdivision of the United States. As such it is a unit of government to which the Smith Act by its own terms extends.[14]
If general legislation such as the Selective Service Act is applicable to Puerto Rico[15] to protect the government from foreign enemies, it is difficult to understand why legislation designed to protect the government against internal enemies is not likewise applicable. In view of the continued sovereignty of the United States Government in Puerto Rico, the contention that the power to protect that sovereignty has been extinguished is untenable. The petitioner's detention, pending removal to the District of Puerto Rico for trial is lawful.
Writ discharged.
Settle order on notice.
NOTES
[1] The petitioner was originally arrested on October 20th, 1954 upon a commissioner's warrant issued upon a complaint which was filed on October 19th, 1954. The indictment was returned on October 27th, 1954 while the removal proceedings were pending.
[2] 64 Stat. 319, 48 U.S.C.A. §§ 731b to 731e.
[3] 48 U.S.C.A. § 731d note. Approved by Congress July 3rd, 1952, 66 Stat. 327, proclaimed in force by the Governor of Puerto Rico, July 25th, 1952.
[4] Carrion v. Gonzalez, D.C.P.R., No. 8994C, 125 F. Supp. 819; United States v. Long, D.C.P.R., 118 F. Supp. 857 (conspiracy to defraud the United States in violation of 18 U.S.C. § 371).
[5] 64 Stat. 319, §§ 1, 2, 48 U.S.C.A. §§ 731b, 731c.
[6] Magruder, The Commonwealth Status of Puerto Rico, 15 Pitt.L.Rev. 1, 7-10.
[7] Committee on Public Lands, H.R. No. 2275, 81st Cong., 2nd Sess., June 19th, 1950. The Committee report states: "It is important that the nature and general scope of S. 3336 be made absolutely clear. The bill under consideration would not change Puerto Rico's fundamental political, social, and economic relationship to the United States. Those sections of the Organic Act of Puerto Rico pertaining to the political, social, and economic relationship of the United States and Puerto Rico concerning such matters as the applicability of United States laws, customs, internal revenue, Federal judicial jurisdiction in Puerto Rico, Puerto Rican representation by a Resident Commissioner, etc., would remain in force and effect, and upon enactment of S. 3336 would be referred to as the Puerto Rican Federal Relations Act. The sections of the organic act which section 5 of the bill would repeal are the provisions of the act concerned primarily with the organization of the local executive, legislative, and judicial branches of the government of Puerto Rico and other matters of purely local concern." United States Code Congressional and Administrative Service, Vol. 2, 81st Cong., 2nd Sess., 1950, pp. 2682-2683.
[8] 48 U.S.C.A. § 731e.
[9] See Mora v. Mejias, 1 Cir., 206 F.2d 377.
[10] Id., 206 F.2d at page 382
[11] It is unnecessary to define the exact extent of this relationship, but as has been suggested, "Its present commonwealth status is unprecedented in our American history and has no exact counterpart elsewhere in the world. Clearly that status precludes neither ultimate statehood nor ultimate independence." Magruder, Commonwealth Status of Puerto Rico, 15 Pitt.L.Rev. 1, 5.
[12] Id., at 17.
[13] Constitution of the Commonwealth of Puerto Rico, Art. VII, Section 3, 48 U.S. C.A. § 731d note.
[14] 18 U.S.C. § 2385.
[15] Ruiz Alicea v. United States, 1 Cir., 180 F.2d 870. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625076/ | 15 So. 3d 558 (2009)
In re AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE MANAGEMENT OF CASES INVOLVING COMPLEX LITIGATION.
No. SC08-1141.
Supreme Court of Florida.
May 28, 2009.
Thomas H. Bateman, III, Chair, Task Force on the Management of Cases Involving Complex Litigation, Messer, Caparello and Self, P.A., Tallahassee, FL, for Petitioner.
Marianne Trussell, Chair, Civil Procedure Rules Committee, Tallahassee, Florida and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL; Jennifer Mansfield of Holland and Knight, Jacksonville, FL; Bill Wagner, Tampa, FL; Henry P. Trawick, Jr., Sarasota, FL; Irene G. Plank, Director of Court Services, on behalf of Karen E. Rushing, Clerk of Circuit Court and County Comptroller, Sarasota County, Sarasota, FL; Judge Judith L. Kreeger, and, Judge Sandy Karlan, Eleventh Judicial Circuit, Miami, FL, Judge Hugh E. Starnes, Twentieth Judicial Circuit, Fort Myers, FL, and Judge Raymond Thomas McNeal (Retired), Ocala, FL; Scott L. Rubin, Chair, The Florida Bar Family Law Section, Miami, FL, and Ronald L. Bornstein, Chair, Rules and Forms Committee, The Florida Bar Family Law Section, Boca Raton, FL; Diane M. Kirigin, General Magistrate, South County Judicial Complex, Delray Beach, FL; Salvatore G. Scro of Levin Tannenbaum, Sarasota, FL; Robyn L. Vines, Chair, Family Law Rules Committee, Fort Lauderdale, FL; Responding with Comments.
PARIENTE, J.
The Task Force on the Management of Cases Involving Complex Litigation (Task Force) has submitted proposed amendments to the Florida Rules of Civil Procedure for our consideration. The proposed amendments provide procedures to improve case management of complex civil litigation. We have jurisdiction and adopt the proposed amendments with some modifications, as explained below. See art. V, § 2(a), Fla. Const. In addition to adopting Florida Rule of Civil Procedure 1.201, we also amend Florida Rules of Civil Procedure 1.100, 1.200, 1.440, Forms for Use with Rules of Civil Procedure 1.997 and 1.998, and Florida Family Law Rule of Procedure 12.100, and adopt a new Form for Use with Rules of Civil Procedure 1.999, Florida Family Law Rule of Procedure 12.201, and Florida Supreme Court Approved Family Law Form 12.928.
BACKGROUND
The background for this petition began with the creation of the Task Force, in September 2006, by then Chief Justice R. Fred Lewis, to "study and examine the efficient and effective management of complex litigation, and the resolution of discovery and other pre-trial matters in litigation." As stated in the Administrative Order creating the Task Force, "the fair and efficient resolution of complex litigation requires that the court exercise effective supervision and control, and judge and counsel collaborate to develop and implement a comprehensive plan for the conduct of pre-trial and trial proceedings." See Fla. Admin. Order No. SC06-53 (Fla. Sept. 19, 2006) (citing to the Manual for Complex Litigation).
The Task Force, led admirably by Chair, The Honorable Thomas H. Bateman, III, consisted of twenty members, including judges and lawyers from throughout Florida *559 with experience in handling and managing complex litigation.[1] The Task Force embarked on a review of the existing Florida Rules of Civil Procedure to determine whether rules, systems, or processes should be created or amended to enhance the effective case management of complex litigation.
The Task Force met frequently over an eighteen-month period and conducted a public hearing and panel discussion in Orlando in June 2007. Simultaneously with the appointment of the Task Force, business courts began to emerge in three Florida urban jurisdictions. A hybrid model, comprised of both a complex case and a business court division, was created in a fourth urban jurisdiction. The Task Force spent a considerable amount of time discussing the pros and cons of complex court divisions and business courts. In addition, several administrative issues relating to time standards for civil cases and pending caseloads were identified and discussed at length.
In April 2008, the Task Force submitted its report titled "Supreme Court of Florida's Task Force on the Management of Cases Involving Complex Litigation, Report and Recommendations" (Report) to the Court. The Report contained a series of recommendations, with the centerpiece being a recommendation that the Court adopt a rule of civil procedure specifically designed to govern the case management of complex civil litigation and other related rule and form amendments.[2]
Pursuant to direction from the Court, the Task Force filed, in June 2008, a petition proposing amendments to Florida Rules of Civil Procedure 1.100 (Pleadings and Motions) and 1.200 (Pretrial Procedure) and Forms for Use with Rules of Civil Procedure 1.997 (Civil Cover Sheet) and 1.998 (Final Disposition Form), as well as the adoption of a new rule, rule 1.201 (Complex Litigation), and a new form, *560 form 1.999 (Order Designating a Case Complex).
The proposed amendments were published in The Florida Bar News. The Court specifically asked the Florida Bar Civil Procedure Rules Committee (Civil Rules Committee) and the Family Law Rules Committee (Family Rules Committee) to comment on the proposed amendments. The Court received ten comments, including comments by the rules committees.[3]
We have considered each of the comments, including those of the Civil Rules Committee, which unanimously opposed the adoption of rule 1.201 because of its concern that the proposed rule would "micromanage cases" and would "reduce the trial court's discretionary control over its cases." We have also considered the minority view of one of the Task Force members, Judge Webster, who likewise believed that the rule was unnecessary and that the goals of this new rule could be better achieved through the use of rule 1.200 (Pretrial Procedure).[4]
We have concluded that, although there are other possible solutions to the problem of management of complex civil cases, the adoption of a specific rule of case management for use in cases that require more judicial labor should promote, not frustrate, the efficient and timely disposition of those cases. We take this opportunity to reemphasize the importance of judicial case management of all cases and the charge of Florida Rule of Judicial Administration 2.545, entitled "Case Management," that the "trial judge shall take charge of all cases at an early stage in the litigation and shall control the progress of the case" until its conclusion. (Emphasis added.) We encourage the use of differentiated case management, a term that "refers to an approach where the court conducts early case screening and assigns certain cases to processing tracks based on that assessment." Office of Program Policy Analysis and Government Accountability, Report No. 09-06: Judicial Case Management Practices Vary Throughout State; Better Case Data Needed 4 (2009) [hereinafter OPPAGA Report]. We now proceed to explain the amendments.
THE AMENDMENTS
The new rule 1.201 defines "complex litigation" and identifies the criteria to be considered by trial courts in deciding whether a case merits handling as complex; it also establishes the procedures for raising and deciding the issue. The Task Force, through its Definition Subcommittee, after studying rules in place in other jurisdictions, rejected a "laundry list" approach of identifying case types that would *561 qualify as complex in favor of a more flexible approach that emulates California's definition of complex cases.
The rule is tailored specifically to allow the parties and trial courts to identify, early in the litigation process, those cases needing proactive judicial involvement, the early setting of a trial date, and a specific schedule to which the parties must adhere for the completion of pretrial tasks. The goal is to encourage trial courts to manage their dockets and, with regard to cases designated as complex, provide for uniform case management statewide so as to prevent the situation in which cases requiring more judicial labor create a docketing "logjam." It is hoped that the extra judicial labor required on the front end of the process will be more than made up for by the conservation of judicial labor over the life of the case, resulting in economies of time and money for the courts and the litigants.
Some of the most significant aspects of the rule include the provision for an initial case management conference at which a definite trial date is to be set within twenty-four months and a requirement that lead trial counsel and a client representative attend that conference. The early setting of a definite trial date was deemed to be a key case management technique to avoid cases languishing on dockets for years. Before the initial case management conference, the rule provides for a mandatory meeting of counsel for all parties for the purpose of discussing the issues listed in the rule and preparing a joint statement to be submitted to the court within fourteen days of the scheduled conference. The rule requires the court, following the case management conference, to issue a case management order establishing certain pretrial deadlines. The rule also provides for a final case management conference at least ninety days prior to the previously established trial date, preceded by another meeting of all counsel to discuss and prepare a case status report prior to the conference.
We carefully reviewed the rule, understanding the extensive effort that Task Force members expended in its drafting, and also considered comments by individual attorneys who made constructive suggestions for changes to the rule. Having taken the comments into consideration, we have made several changes, including several stylistic and editorial changes, to the Task Force's proposal.
We highlight those changes made in response to the comments received. First, we added a provision to subdivision (a) of rule 1.201 that allows the parties to stipulate to a case's complexity. The provision will encourage use of the rule in all appropriate circumstances where all the parties agree to be governed by the provisions of the rule.
We also modified subdivision (a) to allow the parties to file a motion to designate an action as complex prior to service on or the filing of an answer by every defendant "subject to a showing to the court why service has not been made on all defendants." This modification addresses the concern that the inability of the plaintiff to serve all parties or the voluntary nonappearance of one or more parties after service has been made should not foreclose designation of complexity in otherwise appropriate cases.
We further added language to clarify that pro se parties are to be included in any conferences or meetings contemplated by the rule. In subdivision (b)(1) we clarified that "submitted to the court" means "filed with the clerk of the court" to avoid potential confusion. Regarding the concern of one of the commentators that (b)(1)(D) needs clarification, we read the requirement to disclose "any non-parties *562 to whom any of the parties will seek to allocate fault," as referring to Fabre defendants. See Fabre v. Marin, 623 So. 2d 1182, 1185 (Fla.1993), receded from on other grounds by Wells v. Tallahassee Mem'l Reg'l Med. Ctr., 659 So. 2d 249, 251-52 (Fla.1995). Accordingly, we deem any clarification of this subdivision to be unnecessary.
In subdivision (b)(3) we deleted the requirement that counsel provide the court with assurances at the case management conference that the trial date has been discussed with their clients in the event the case is set to be tried before a jury because the client or authorized client representative is required to be in attendance, making the assurance redundant. In addition, we included a provision in subdivision (c) requiring the case management order to include deadlines for the completion of all discovery, not just expert witness depositions, because these deadlines are in conformity with the intent of this rule.
We added a provision to subdivision (d) clarifying that, in accordance with preexisting case law, a party is not precluded from calling impeachment or rebuttal witnesses not identified in the case status report if the need for their testimony could not have been reasonably foreseen at the time the case status report was prepared. However, we anticipate that parties will comply with the underlying intent of the rule, which is to list all witnesses and to avoid any improper tactics associated with late-filing or failure to file the names of all known witnesses.
We deleted the court commentary proposed by the Task Force that encourages the "use of general magistrates, special masters, mediators, arbitrators or other neutrals" who can often "assist the parties and the trial judge with resolving time consuming disputes" and "help expedite the adjudication of contentious discovery issues." We certainly agree with the Task Force's comment about the role of neutral individuals who can assist the court in the resolution of discovery disputes. However, we do not deem it appropriate to include this type of commentary as that of the Court as an addendum to the adoption of this rule.
Further, the Task Force proposed and we adopt form 1.999 (Order Designating a Case Complex), which is to be utilized by circuit courts when designating a case complex, and direct the clerks of court to report to the Office of the State Courts Administrator, along with their Quarterly Pending Caseload Reports, the number of cases designated as complex during the quarter and identifying such cases by case style, number, and court division, beginning with the quarter ending on December 31, 2009. The use of this form will be critical in keeping track of the number of complex cases pending and tracking their status in the trial courts. However, we note that without a uniform statewide judicial case management system, the courts will continue to be hampered in their ability to manage their cases in a meaningful way. See OPPAGA Report at 6-10.
In addition, in response to concerns of the Family Rules Committee and four circuit judges (Judges Kreeger, Karlan, Starnes, and McNeal), we adopt Florida Family Law Rule of Procedure 12.201 to exclude family law cases from application of rule 1.201, the complex litigation rule. We are confident that the Task Force never intended that family cases would be included within the scope of the proposed rule. We likewise amend Florida Family Law Rule of Procedure 12.100 (Pleadings and Motions) to exempt family law cases from the requirement in rule 1.100(c)(3) that parties must file a final disposition form with the clerk if the action is settled without a court order or judgment being *563 entered or if the action is dismissed by the parties.
In accordance with the Task Force proposals, we also amend rule 1.100 (Pleadings and Motions) to require a Final Disposition Form (form 1.998) to be completed when a case settles out of court or is voluntarily dismissed; rule 1.200 (Pretrial Procedure) to refer the reader to rule 1.201 for the factors used in determining whether a case is complex; and form 1.998 (Disposition Form) to require the prevailing party to complete and file the form at the conclusion of a case and adding two additional categories to section II to track final dispositions reached through settlement (the same two categories being added to rule 1.100). We also adopt on our own motion an amendment to rule 1.440 (Setting Action for Trial) to exclude complex litigation cases because rule 1.201 provides its own procedures for setting these cases for trial.
We also address the proposed amendments to form 1.997 (Civil Cover Sheet), which has not been substantially amended in over twenty years. All those parties and commenters agree that the current civil cover sheet is outdated and needs revision.
We approve the Task Force's recommendation to add many more specific case categories and case subcategories to more specifically identify the types of civil cases being filed.[5] Upon our review, which has included reviewing the federal courts' civil cover sheet and the civil cover sheets used in other states, we have modified some of the categories proposed and added others, with accompanying definitions.
We emphasize the new requirement that an attorney or pro se litigant certify the accuracy of the designation of case type and other information contained on the cover sheets, Form 1.997 (Civil Cover Sheet) and Form 12.928 (Family Court Cover Sheet). The information in the civil cover sheet is required for use by the clerks of court for the purpose of reporting the judicial workload data pursuant to section 25.075, Florida Statutes (2008), and the Court relies on this workload data in preparing its certificate of need for additional trial court judges. We believe updating this form, and adopting form 12.928, discussed below, are important steps in obtaining reliable and more accurate case data. Reliable case data is also "critical to efficiently manage circuit caseloads." OPPAGA Report at 8. However, as with our comments regarding the designation of cases as complex, without a uniform statewide case management system, the information contained in the civil cover sheet and family court cover sheet will be of limited usefulness for meaningful and effective case management.
While we remove all family categories from the civil cover sheet, we adopt new Florida Supreme Court Approved Family Law Form 12.928 (Family Court Cover Sheet) which consists of all of the family and juvenile case categories being deleted from form 1.997, as well as new case subcategories to more specifically identify the types of family and juvenile cases being filed. Form 12.928 also requires the plaintiff or petitioner to identify all related cases to promote implementation of the *564 goals of the unified family court. See also Fla. R. Jud. Admin. 2.545(d) (requiring a petitioner in a family case to file a notice of related cases).
We have delayed the date on which the amended Civil Cover Sheet and new Family Court Cover Sheet shall become effective until January 1, 2010, at 12:01 a.m. We direct the clerks of court of all Florida circuit courts to continue reporting case statistics to the Office of the State Courts Administrator for all case categories listed on the current form 1.997 until December 31, 2009. See § 25.075, Fla. Stat. (2008); Fla. R. Jud. Admin. 2.245. Thereafter, commencing with the period beginning January 1, 2010, the clerks of court are to report case statistics to the Office of the State Courts Administrator for all categories and subcategories of cases on form 1.997 (Civil Cover Sheet) and form 12.928 (Family Court Cover Sheet) as shown in the appendix to this opinion.
CONCLUSION
We thank the Task Force on the Management of Cases Involving Complex Litigation for its hard work, diligence, and thorough recommendations. Upon consideration of the Task Force's proposals, the comments filed by interested parties, and the presentations made at oral argument in this case, we adopt amendments to Florida Rules of Civil Procedure 1.100 (Pleadings and Motions), 1.200 (Pretrial Procedure), and 1.440 (Setting Action for Trial), Florida Family Law Rule of Procedure 12.100 (Pleadings and Motions), and Forms for Use with Rules of Civil Procedure 1.997 (Civil Cover Sheet) and 1.998 (Final Disposition Form). We adopt new rules 1.201 (Complex Litigation) and 12.201 (Complex Litigation), form 1.999 (Order Designating A Case Complex), and Florida Supreme Court Approved Family Law Form 12.928 (Family Court Cover Sheet).
Because rules 1.201, 1.440, 12.100, and 12.201 and forms 1.997, 1.998, and 12.928 have been modified from their previously published proposed format or were not published for comment prior to their adoption, we direct that these rules and forms, as shown in the appendix to this opinion, be published in The Florida Bar News. Any interested person may file comments on the rules and forms with this Court within sixty days of the date of this opinion; however, the additional comments shall be limited only to the changes we have made subsequent to the initial publication and should not consist of reargument.[6]
The Florida Rules of Civil Procedure and Florida Family Law Rules of Procedure are hereby amended as set forth in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. New forms 1.999 (in legislative format) and 12.928 (fully engrossed) are adopted as set forth in the appendix to this opinion. The amendments to form 1.997 (Civil Cover Sheet) and new form 12.928 (Family Court Cover Sheet) shall become effective January 1, 2010, at 12:01 a.m. The remainder of *565 the amendments shall become effective immediately.
It is so ordered.
LEWIS, LABARGA, and PERRY, JJ., concur.
LABARGA, J., specially concurs with an opinion.
POLSTON, J., dissents with an opinion, in which QUINCE, C.J., and CANADY, J., concur.
LABARGA, J., specially concurring.
I concur fully in adoption of these important amendments and write only to commend the members of the Task Force on the Management of Cases Involving Complex Litigation, under the leadership of Judge Thomas H. Bateman, III, for their dedication and hard work. The comments of members of the Civil Rules Committee, the Family Law Rules Committee, the Family Law Section of the Florida Bar, a number of circuit court judges, and other individuals were invaluable and carefully considered.
POLSTON, J., dissenting.
The Florida Bar Civil Procedure Rules Committee filed a response in opposition to the proposed rule, stating:
[T]he new complex litigation rule proposed in a petition by the Task Force is unnecessary and places an unduly heavy burden on the time and financial resources of overburdened judges, clerks, and their staffs in a time of unprecedented budget cuts. The Task Force's Report contains no empirical evidence that such a rule is either needed or supported by even a minority of trial judges and lawyers across the state. Significantly, the majority of what the new rule attempts to accomplish can be found, for the most part, in existing Rule 1.200.
The Rules Committee approved this response at its September 12, 2008 meeting by a vote of 42-0. The Rules Committee consists of members from diverse backgrounds and practice areas, representing plaintiffs and defendants, and from private practice and government agencies, as well as judges from across the state. The Florida Bar Board of Governors, by its executive committee, approved the response 8-0.
Judge Peter D. Webster, a Task Force member, filed a minority view also expressing an opinion that the rule is unnecessary.
I am persuaded by the Rules Committee's response and the comments by Judge Webster that we should not adopt the proposed rule; therefore, I respectfully dissent.
QUINCE, C.J., and CANADY, J., concur.
APPENDIX
RULE 1.100. PLEADINGS AND MOTIONS
(a)-(b) [No Change]
(c) Caption.
(1) Every pleading, motion, order, judgment, or other paper shall have a caption containing the name of the court, the file number, the name of the first party on each side with an appropriate indication of other parties, and a designation identifying the party filing it and its nature or the nature of the order, as the case may be. All papers filed in the action shall be styled in such a manner as to indicate clearly the subject matter of the paper and the party requesting or obtaining relief.
(2) A civil cover sheet (form 1.997) shall be completed and filed with the clerk at *566 the time an initial complaint or petition is filed by the party initiating the action. If the cover sheet is not filed, the clerk shall accept the complaint or petition for filing; but all proceedings in the action shall be abated until a properly executed cover sheet is completed and filed. The clerk shall complete the civil cover sheet for a party appearing pro se.
(3) A final disposition form (form 1.998) shall be filed with the clerk by the prevailing party at the time of the filing of the order or judgment which disposes of the action. If the action is settled without a court order or judgment being entered, or dismissed by the parties, the plaintiff or petitioner immediately shall file a final disposition form (form 1.998) with the clerk. The clerk shall complete the final disposition form for a party appearing pro se, or when the action is dismissed by court order for lack of prosecution pursuant to rule 1.420(e).
(d) [No Change]
Committee Notes
[No Change]
RULE 1.200. PRETRIAL PROCEDURE
(a) Case Management Conference. At any time after responsive pleadings or motions are due, the court may order, or a party by serving a notice may convene, a case management conference. The matter to be considered shall be specified in the order or notice setting the conference. At such a conference the court may:
(1) schedule or reschedule the service of motions, pleadings, and other papers;
(2) set or reset the time of trials, subject to rule 1.440(c);
(3) coordinate the progress of the action if the complex litigation factors contained in rule 1.201(a)(2)(A)-(a)(2)(H) are present;
(4) limit, schedule, order, or expedite discovery;
(5) schedule disclosure of expert witnesses and the discovery of facts known and opinions held by such experts;
(6) schedule or hear motions in limine;
(7) pursue the possibilities of settlement;
(8) require filing of preliminary stipulations if issues can be narrowed;
(9) consider referring issues to a magistrate for findings of fact; and
(10) schedule other conferences or determine other matters that may aid in the disposition of the action.
(b)-(d) [No Change]
Committee Notes
[No Change]
Court Commentary
[No Change]
RULE 1.201. COMPLEX LITIGATION
(a) Complex Litigation Defined. At any time after all defendants have been served, and an appearance has been entered in response to the complaint by each party or a default entered, any party, or the court on its own motion, may move to declare an action complex. However, any party may move to designate an action complex before all defendants have been served subject to a showing to the court why service has not been made on all defendants. The court shall convene a hearing to determine whether the action requires the use of complex litigation procedures and enter an order within 10 days of the conclusion of the hearing.
(1) A "complex action" is one that is likely to involve complicated legal or case management issues and that may require extensive judicial management to expedite *567 the action, keep costs reasonable, or promote judicial efficiency.
(2) In deciding whether an action is complex, the court must consider whether the action is likely to involve:
(A) numerous pretrial motions raising difficult or novel legal issues or legal issues that are inextricably intertwined that will be time-consuming to resolve;
(B) management of a large number of separately represented parties;
(C) coordination with related actions pending in one or more courts in other counties, states, or countries, or in a federal court;
(D) pretrial management of a large number of witnesses or a substantial amount of documentary evidence;
(E) substantial time required to complete the trial;
(F) management at trial of a large number of experts, witnesses, attorneys, or exhibits;
(G) substantial post-judgment judicial supervision; and
(H) any other analytical factors identified by the court or a party that tend to complicate comparable actions and which are likely to arise in the context of the instant action.
(3) If all of the parties, pro se or through counsel, sign and file with the clerk of the court a written stipulation to the fact that an action is complex and identifying the factors in (2)(A) through (2)(H) above that apply, the court shall enter an order designating the action as complex without a hearing.
(b) Initial Case Management Report and Conference. The court shall hold an initial case management conference within 60 days from the date of the order declaring the action complex.
(1) At least 20 days prior to the date of the initial case management conference, attorneys for the parties as well as any parties appearing pro se shall confer and prepare a joint statement, which shall be filed with the clerk of the court no later than 14 days before the conference, outlining a discovery plan and stating:
(A) a brief factual statement of the action, which includes the claims and defenses;
(B) a brief statement on the theory of damages by any party seeking affirmative relief;
(C) the likelihood of settlement;
(D) the likelihood of appearance in the action of additional parties and identification of any nonparties to whom any of the parties will seek to allocate fault;
(E) the proposed limits on the time: (i) to join other parties and to amend the pleadings, (ii) to file and hear motions, (iii) to identify any nonparties whose identity is known, or otherwise describe as specifically as practicable any nonparties whose identity is not known, (iv) to disclose expert witnesses, and (v) to complete discovery;
(F) the names of the attorneys responsible for handling the action;
(G) the necessity for a protective order to facilitate discovery;
(H) proposals for the formulation and simplification of issues, including the elimination of frivolous claims or defenses, and the number and timing of motions for summary judgment or partial summary judgment;
(I) the possibility of obtaining admissions of fact and voluntary exchange of documents and electronically stored information, stipulations regarding authenticity *568 of documents, electronically stored information, and the need for advance rulings from the court on admissibility of evidence;
(J) suggestions on the advisability and timing of referring matters to a magistrate, master, other neutral, or mediation;
(K) a preliminary estimate of the time required for trial;
(L) requested date or dates for conferences before trial, a final pretrial conference, and trial;
(M) a description of pertinent documents and a list of fact witnesses the parties believe to be relevant;
(N) number of experts and fields of expertise; and
(O) any other information that might be helpful to the court in setting further conferences and the trial date.
(2) Lead trial counsel and a client representative shall attend the initial case management conference.
(3) Notwithstanding rule 1.440, at the initial case management conference, the court will set the trial date or dates no sooner than 6 months and no later than 24 months from the date of the conference unless good cause is shown for an earlier or later setting. The trial date or dates shall be on a docket having sufficient time within which to try the action and, when feasible, for a date or dates certain. The trial date shall be set after consultation with counsel and in the presence of all clients or authorized client representatives. The court shall, no later than 2 months prior to the date scheduled for jury selection, arrange for a sufficient number of available jurors. Continuance of the trial of a complex action should rarely be granted and then only upon good cause shown.
(c) The Case Management Order. The case management order shall address each matter set forth under rule 1.200(a) and set the action for a pretrial conference and trial. The case management order also shall specify the following:
(1) Dates by which all parties shall name their expert witnesses and provide the expert information required by rule 1.280(b)(4). If a party has named an expert witness in a field in which any other parties have not identified experts, the other parties may name experts in that field within 30 days thereafter. No additional experts may be named unless good cause is shown.
(2) Not more than 10 days after the date set for naming experts, the parties shall meet and schedule dates for deposition of experts and all other witnesses not yet deposed. At the time of the meeting each party is responsible for having secured three confirmed dates for its expert witnesses. In the event the parties cannot agree on a discovery deposition schedule, the court, upon motion, shall set the schedule. Any party may file the completed discovery deposition schedule agreed upon or entered by the court. Once filed, the deposition dates in the schedule shall not be altered without consent of all parties or upon order of the court. Failure to comply with the discovery schedule may result in sanctions in accordance with rule 1.380.
(3) Dates by which all parties are to complete all other discovery.
(4) The court shall schedule periodic case management conferences and hearings on lengthy motions at reasonable intervals based on the particular needs of the action. The attorneys for the parties as well as any parties appearing pro se shall confer no later than 15 days prior to each case management conference or hearing. They shall notify the court at least 10 days prior to any case management conference or hearing if the parties stipulate that a case management conference or hearing *569 time is unnecessary. Failure to timely notify the court that a case management conference or hearing time is unnecessary may result in sanctions.
(5) The case management order may include a briefing schedule setting forth a time period within which to file briefs or memoranda, responses, and reply briefs or memoranda, prior to the court considering such matters.
(6) A deadline for conducting alternative dispute resolution.
(d) Final Case Management Conference. The court shall schedule a final case management conference not less than 90 days prior to the date the case is set for trial. At least 10 days prior to the final case management conference the parties shall confer to prepare a case status report, which shall be filed with the clerk of the court either prior to or at the time of the final case management conference. The status report shall contain in separately numbered paragraphs:
(1) A list of all pending motions requiring action by the court and the date those motions are set for hearing.
(2) Any change regarding the estimated trial time.
(3) The names of the attorneys who will try the case.
(4) A list of the names and addresses of all non-expert witnesses (including impeachment and rebuttal witnesses) intended to be called at trial. However, impeachment or rebuttal witnesses not identified in the case status report may be allowed to testify if the need for their testimony could not have been reasonably foreseen at the time the case status report was prepared.
(5) A list of all exhibits intended to be offered at trial.
(6) Certification that copies of witness and exhibit lists will be filed with the clerk of the court at least 48 hours prior to the date and time of the final case management conference.
(7) A deadline for the filing of amended lists of witnesses and exhibits, which amendments shall be allowed only upon motion and for good cause shown.
(8) Any other matters which could impact the timely and effective trial of the action.
RULE 1.440. Setting Action for Trial
(a)-(c) [No Change]
(d) Applicability. This rule does not apply to actions to which chapter 51, Florida Statutes (1967), applies or to cases designated as complex pursuant to rule 1.201.
Committee Notes
[No Change]
Court Commentary
[No Change]
Form 1.997 Civil Cover Sheet
The civil cover sheet and the information contained herein neither replace nor supplement the filing and
service of pleadings or other papers as required by law. This form is required shall be filed by the
plaintiff or petitioner for the use of the Clerk of Court for the purpose of reporting judicial workload data
pursuant to Florida Statutes section 25.075. (See instructions on the reverse of the form for completion).
-----------------------------------------------------------------------------------------------------------------------------
I. CASE STYLE
*570
(Name of Court) ___________
Plaintiff __________ Case #: __________
__________ Judge: ___________
vs.
Defendant _________
_________
-----------------------------------------------------------------------------------------------
II. TYPE OF CASE (Place an x in one box only. If the case fits more than one type of case, select
the most definitive category.) If the most descriptive label is a subcategory (is indented under a
broader category), place an x in both the main category and subcategory boxes.
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Domestic Relations Torts Other Civil
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[] Simplified dissolution [] Professional [] Contracts
[] Dissolution malpractice [] Condominium
[] Support IV D [] Products liability [] Real property/ Mortgage
[] Support Non IV D [] Auto negligence foreclosure
[] UIFSA IV D [] Other negligence [] Eminent domain
[] UIFSA Non IV D [] Challenge to proposed
[] Domestic violence constitutional amendment
[] Other domestic relations [] Other
[] Condominium [] Professional malpractice
[] Contracts and indebtedness [] Malpracticebusiness
[] Eminent domain [] Malpracticemedical
[] Auto negligence [] Malpracticeother professional
[] Negligenceother [] Other
[] Business governance [] Antitrust/Trade regulation
[] Business torts [] Business transactions
[] Environmental/Toxic tort [] Constitutional challengestatute or
[] Third party indemnification ordinance
[] Construction defect [] Constitutional challengeproposed
[] Mass tort amendment
[] Negligent security [] Corporate trusts
[] Nursing home negligence [] Discriminationemployment or other
[] Premises liabilitycommercial [] Insurance claims
[] Premises liabilityresidential [] Intellectual property
[] Products liability [] Libel/Slander
[] Real property/Mortgage foreclosure [] Shareholder derivative action
[] Commercial foreclosure [] Securities litigation
[] Residential foreclosure [] Trade secrets
[] Other real property actions
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III. REMEDIES SOUGHT (check all that apply):
[] monetary;
[] nonmonetary declaratory or injunctive relief;
[] punitive
IV. NUMBER OF CAUSES OF ACTION: [ ]
(specify)---------------------------------------------------------------
*571
V. IS THIS CASE A CLASS ACTION LAWSUIT?
[] yes
[] no
VI. HAS NOTICE OF ANY KNOWN RELATED CASE BEEN FILED?
[] no
[] yes If "yes," list all related cases by name, case number, and court.
VII. IS JURY TRIAL DEMANDED IN COMPLAINT?
[] yes
[] no
--------------------------------------------------------------------------------
Date: ______________ SIGNATURE OF ATTORNEY FOR PARTY
INITIATING ACTION
I CERTIFY that the information I have provided in this cover sheet is accurate to the best of my
knowledge and belief.
Signature_________________________Fla. Bar #__________________
Attorney or party (Bar # if attorney)
--------------------------------------------------------------------------------------------
(type or print name) Date
FORM 1.997. INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET
Plaintiff must file this cover sheet with first paperwork filed in the action or proceeding (except small claims cases or other county court cases, probate, or family cases). Domestic and juvenile cases should be accompanied by a completed Family Court Cover Sheet, Florida Supreme Court Approved Family Law Form 12.928. Failure to file a civil cover sheet in any civil case other than those excepted above may result in sanctions.
I. Case Style. Enter the name of the court, the appropriate case number assigned at the time of filing of the original complaint or petition, the name of the judge assigned (if applicable), and the name (last, first, middle initial) of plaintiff(s) and defendant(s).
II. Type of Case. Place an "X" in the appropriate box. If the cause fits more than one type of case, select the most definitive. If the most definitive label is a subcategory (indented under a broader category label), place an "X" in the category and subcategory boxes. Definitions of the cases are provided below in the order they appear on the form.
(A) Simplified Dissolution of Marriage petitions for the termination of marriage pursuant to Fla.Fam.L.R.P.12.105.
(B) Dissolution of Marriagepetitions for the termination of marriage other than simplified dissolution.
(C) Support-IV-Dall matters relating to child or spousal support in which an application for assistance has been filed under Title IV-D, Social Security Act, except for such matters relating to dissolution of marriage petitions (sections 409.2564, *572 409.2571, and 409.2597, Florida Statutes), paternity, or UIFSA.
(D) SupportNon IV-Dall matters relating to child or spousal support in which an application for assistance has not been filed under Title IV-D, Social Security Act.
(E) UIFSA-IV-D all matters relating to Chapter 88, Florida Statutes in which an application for assistance has been filed under Title IV-D, Social Security Act.
(F) UIFSA-Non IV-D all matters relating to Chapter 88, Florida Statutes, in which an application for assistance has not been filed under Title IV-D, Social Security Act.
(G) Domestic Violenceall matters relating to injunctions for protection against domestic violence pursuant to section 741.30, Florida Statutes.
(H) Domestic Relationsall matters involving adoption, paternity, change of name, child custody, separate maintenance, annulment, or other matters not included in categories (A) through (G).
(I) Auto Negligenceall matters arising out of a party's allegedly negligent operation of a motor vehicle.
(J) Professional Malpracticeall professional malpractice lawsuits.
(K) Products Liabilityall matters involving injury to person or property allegedly resulting from the manufacture or sale of a defective product or from a failure to warn.
(L) Other Negligenceall actions sounding in negligence, including statutory claims for relief on account of death or injury, not included in categories (I), (J), and (K).
(M) Condominiumall civil lawsuits pursuant to Chapter 718, Florida Statutes, where a condominium association is a party in the lawsuit.
(N) Eminent Domainall matters relating to the taking of private property for public use, including inverse condemnation by state agencies, political subdivisions, and public service corporations.
(O) Real Property/Mortgage Foreclosure all matters relating to the possession, title, and boundaries of real property. All matters involving foreclosures and sales, including foreclosures associated with condominium associations and condominium units.
(P) Contract and indebtednessall contract actions relating to promissory notes and other debts, including those arising from the sale of goods. Excludes contract disputes involving condominium associations.
(Q) Challenge to proposed constitutional amendmenta challenge to a legislatively initiated proposed constitutional amendment. Excludes challenges to citizen-initiated proposed constitutional amendments, because the Florida Supreme Court has direct jurisdiction of such challenges.
(R) Other Civilall civil matters not included in categories (A) through (Q).
III. Is Jury Trial Demanded In Complaint? Check the appropriate box to indicate whether a jury is being demanded in the complaint.
DATE AND ATTORNEY SIGNATURE. Date and sign the civil cover sheet.
Condominiumall civil lawsuits pursuant to Chapter 718, Florida Statutes, in which a condominium association is a party.
Contracts and indebtednessall contract actions relating to promissory notes and other debts, including those arising from the sale of goods, but excluding contract disputes involving condominium associations.
Eminent domainall matters relating to the taking of private property for public *573 use, including inverse condemnation by state agencies, political subdivisions, or public service corporations.
Auto negligenceall matters arising out of a party's allegedly negligent operation of a motor vehicle.
Negligenceotherall actions sounding in negligence, including statutory claims for relief on account of death or injury, that are not included in other main categories.
Business governanceall matters relating to the management, administration, or control of a company.
Business tortsall matters relating to liability for economic loss allegedly caused by interference with economic or business relationships.
Environmental/Toxic tortall matters relating to claims that violations of environmental regulatory provisions or exposure to a chemical caused injury or disease.
Third party indemnificationall matters relating to liability transferred to a third party in a financial relationship.
Construction defectall civil lawsuits pursuant to Chapter 558, Florida Statutes, in which damage or injury was allegedly caused by a failure to follow acceptable construction trade standards.
Mass tortall matters relating to a civil action involving numerous plaintiffs against one or more defendants.
Negligent securityall matters involving injury to a person or property allegedly resulting from insufficient security.
Nursing home negligenceall matters involving injury to a nursing home resident resulting from negligence of nursing home staff or facilities.
Premises liabilitycommercialall matters involving injury to a person or property allegedly resulting from a defect on the premises of a commercial property.
Premises liabilityresidentialall matters involving injury to a person or property allegedly resulting from a defect on the premises of a residential property.
Products liabilityall matters involving injury to a person or property allegedly resulting from the manufacture or sale of a defective product or from a failure to warn.
Real property/Mortgage foreclosureall matters relating to the possession, title, or boundaries of real property. All matters involving foreclosures or sales of real property, including foreclosures associated with condominium associations or condominium units.
Commercial foreclosureall matters relating to the termination of a business owner's interest in commercial property by a lender to gain title or force a sale to satisfy the unpaid debt secured by the property.
Residential foreclosureall matters relating to the termination of a residential property owner's interest by a lender to gain title or force a sale to satisfy the unpaid debt secured by the property.
Other real property actionsall matters relating to land, land improvements, or property rights.
Professional malpracticeall professional malpractice lawsuits.
Malpracticebusinessall matters relating to a business's or business person's failure to exercise the degree of care and skill that someone in the same line of work would use under similar circumstances.
Malpracticemedicalall matters relating to a doctor's failure to exercise the degree of care and skill that a physician or surgeon of the same medical specialty would use under similar circumstances.
*574 Malpracticeother professionalall matters relating to negligence of those other than medical or business professionals.
Otherall civil matters not included in other categories.
Antitrust/Trade regulationall matters relating to unfair methods of competition or unfair or deceptive business acts or practices.
Business transactionsall matters relating to actions that affect financial or economic interests.
Constitutional challengestatute or ordinance a challenge to a statute or ordinance, citing a violation of the Florida Constitution.
Constitutional challengeproposed amendmenta challenge to a legislatively initiated proposed constitutional amendment, but excluding challenges to a citizen-initiated proposed constitutional amendment because the Florida Supreme Court has direct jurisdiction of such challenges.
Corporate trustsall matters relating to the business activities of financial services companies or banks acting in a fiduciary capacity for investors.
Discriminationemployment or otherall matters relating to discrimination, including employment, sex, race, age, handicap, harassment, retaliation, or wages.
Insurance claimsall matters relating to claims filed with an insurance company.
Intellectual propertyall matters relating to intangible rights protecting commercially valuable products of the human intellect. Libel/Slanderall matters relating to written, visual, oral, or aural defamation of character.
Shareholder derivative actionall matters relating to actions by a corporation's shareholders to protect and benefit all shareholders against corporate management for improper management.
Securities litigationall matters relating to the financial interest or instruments of a company or corporation.
Trade secretsall matters relating to a formula, process, device, or other business information that is kept confidential to maintain an advantage over competitors.
III. Remedies Sought. Place an "X" in the appropriate box. If more than one remedy is sought in the complaint or petition, check all that apply.
IV. Number of Causes of Action. If the complaint or petition alleges more than one cause of action, note the number and the name of the cause of action.
V. Class Action. Place an "X" in the appropriate box.
VI. Related Cases. Place an "X" in the appropriate box.
VII. Is Jury Trial Demanded In Complaint? Check the appropriate box to indicate whether a jury trial is being demanded in the complaint
ATTORNEY OR PARTY SIGNATURE. Sign the civil cover sheet. Print legibly the name of the person signing the civil cover sheet. Attorneys must include a Florida Bar number. Insert the date the civil cover sheet is signed. Signature is a certification that the filer has provided accurate information on the civil cover sheet.
FORM 1.998. FINAL DISPOSITION FORM
This form is requiredshall be filed by the prevailing party for the use of the Clerk of Court for the
purpose of reporting judicial workload data pursuant to Florida Statutes section 25.075. (See instructions
on the reverse of the form.)
*575
--------------------------------------------------------------------
I. CASE STYLE
(Name of Court)____________
Plaintiff ____________ Case #: _____________
____________ Judge: _______________
____________
vs
Defendant _____________
_____________
_____________
-----------------------------------------------------------------------------
II. MEANS OF FINAL DISPOSITION (Place an "x" in one box only)
[] Dismissed Before Hearing
[] Dismissed After Hearing
[] Disposed by Default
[] Disposed by Judge
[] Disposed by Non-jury Trial
[] Disposed by Jury Trial
[] Dismissed Pursuant to Settlement
[] Dismissed Pursuant to Mediated Settlement
[] Other
_____________________________________________________________________________
DATE __________ SIGNATURE OF ATTORNEY FOR PREVAILING PARTY
INSTRUCTIONS FOR ATTORNEYS COMPLETING FINAL DISPOSITION FORM
I. Case Style. Enter the name of the court, the appropriate case number assigned at the time of filing of the original complaint or petition, the name of the judge assigned to the case and the names (last, first, middle initial) of plaintiff(s) and defendant(s).
II. Means of Final Disposition. Place an "x" in the appropriate box. The following are the definitions of the disposition categories.
(A) Dismissed Before Hearingthe case is settled or voluntarily dismissed before a hearing is held;
(B) Dismissed After Hearingthe case is dismissed by a judge, voluntarily dismissed, or settled after a hearing is held;
(C) Disposed by Defaulta defendant chooses not to or fails to contest the plaintiff's allegations and a judgment against the defendant is entered by the court;
(D) Disposed by Judgea judgment or disposition is reached by the judge in a case whichthat is not dismissed and in which no trial has been held. Includes stipulations by the parties, conditional judgments, summary judgment after hearing, and any matter in which a judgment is entered excluding cases disposed of by default as in category (c) above;
(E) Disposed by Non-Jury Trialthe case is disposed as a result of a contested trial in which there is no jury and in which the judge determines both the issues of fact and law in the case;
(F) Disposed by Jury Trialthe case is disposed as a result of a jury trial (consider the beginning of a jury trial to be when *576 the jurors and alternates are selected and sworn);
(G) Dismissal Pursuant to Settlement the case is voluntarily dismissed by the plaintiff after a settlement is reached without mediation;
(H) Dismissal Pursuant to Mediated Settlementthe case is voluntarily dismissed by the plaintiff after a settlement is reached with mediation;
(GI) Otherthe case is consolidated, submitted to arbitration or mediation, transferred, or otherwise disposed by other means not listed in categories (A) through (F)(H).
DATE AND ATTORNEY SIGNATURE. Date and sign the final disposition form.
FORM 1.999. ORDER DESIGNATING A CASE COMPLEX. This form order is for designating a
case complex under rule 1.201 and directing the clerk of court to update the court's records and to report
the case activity to the Supreme Court.
ORDER DESIGNATING CASE A "COMPLEX CASE"
DIRECTIONS TO THE CLERK OF COURT
THIS CAUSE was considered on [the court's own motion] [the motion of a party] to designate this case
a "complex case" as defined in rule 1.201, Fla. R. Civ. P. Being fully advised in the circumstances, the
court determines that the case meets the criteria for proceeding under the rule and designates it as a
"complex case."
The clerk of the court shall designate this case a "complex case," update the court's records
accordingly, and report such designation and the case activity to the Supreme Court pursuant to section
25.075 Fla. Stat. and rule 2.245(a), Fla. R. Jud. Admin.
DONE AND ORDERED at _____________, ___________ County, Florida, on _______________.
_________________________
Judge
RULE 12.100 PLEADINGS AND MOTIONS
Pleadings and motions shall be governed by Florida Rule of Civil Procedure 1.100, except that the requirement in rule 1.100(c)(3) that parties file a final disposition form with the clerk if the action is settled without a court order or judgment being entered or if the action is dismissed by the parties, shall not apply to proceedings governed by these rules.
Commentary
[No change]
RULE 12.201. COMPLEX LITIGATION
Florida Rule of Civil Procedure 1.201 shall not apply in proceedings governed by these rules.
Florida Supreme Court Approved Family Law Form 12.928
Family Court Cover Sheet (01/10)
The Family Court Cover Sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other documents as required by law. This form shall be filed by the petitioner for the use of the clerk of court for the purpose of reporting judicial workload data pursuant to Florida Statutes section 25.075. The petitioner must file this cover sheet with first paperwork filed in the action or proceeding for all domestic and juvenile cases.
I. Case Style. Enter the name of the court, the appropriate case number assigned *577 at the time of filing of the original petition, the name of the judge assigned (if applicable), and the name (last, first, middle initial) of petitioner(s) and respondent(s).
II. Type of Action/Proceeding. Place a check in the appropriate box beside the proceeding you are initiating. If you are simultaneously filing more than one type of proceeding against the same opposing party, such as a modification and an enforcement proceeding, complete a separate coversheet for each action being filed.
(A) Initial Action/Petition
(B) Reopening Case. If you check "Reopening Case," indicate whether you are filing a modification or supplemental petition or an action for enforcement by checking the appropriate box.
(C) Modification/Supplemental Petition
(D) Petition Enforcement
III. Type of Case. Place a check in the appropriate box. If the cause fits more than one type of case, select the most definitive. If the most definitive label is a subcategory (indented under a broader category label), place a check in the category and subcategory boxes. Definitions of the categories and subcategories are provided below.
(A) Simplified Dissolution of Marriage-petitions for the termination of marriage pursuant to Florida Family Law Rule of Procedure 12.105.
(B) Dissolution of Marriagepetitions for the termination of marriage pursuant to Chapter 61, Florida Statutes, other than simplified dissolution.
(C) Domestic Violenceall matters relating to injunctions for protection against domestic violence pursuant to section 741.30, Florida Statutes.
(D) Dating Violenceall matters relating to injunctions for protection against dating violence pursuant to section 784.046, Florida Statutes. If you check this subcategory, you should also check "Domestic violence."
(E) Repeat Violenceall matters relating to injunctions for protection against repeat violence pursuant to section 784.046, Florida Statutes. If you check this subcategory, you should also check "Domestic violence."
(F) Sexual Violenceall matters relating to injunctions for protection against sexual violence pursuant to section 784.046, Florida Statutes. If you check this subcategory, you should also check "Domestic violence."
(G) Support-IV-Dall matters relating to child or spousal support in which an application for assistance has been filed under Title IV-D, Social Security Act, except for such matters relating to dissolution of marriage petitions (sections 409.2564, 409.2571, and 409.2597, Florida Statutes), paternity, or UIFSA.
(H) Support-Non IV-Dall matters relating to child or spousal support in which an application for assistance has not been filed under Title IV-D, Social Security Act.
(I) UIFSA-IV-Dall matters relating to Chapter 88, Florida Statutes, in which an application for assistance has been filed under Title IV-D, Social Security Act.
(J) UIFSA-Non IV-Dall matters relating to Chapter 88, Florida Statutes, in which an application for assistance *578 has not been filed under Title IV-D, Social Security Act.
(K) Otherall matters involving time-sharing and/or parenting plans relating to minor child(ren), adoption, juvenile dependency, juvenile delinquency, name change, paternity, separate maintenance, annulment, truancy, CINS/FINS, emancipation, declaratory judgment actions related to premarital, marital, or post-marital agreements, or other matters not included in the categories above.
(L) Adoptionall matters relating to adoption pursuant to Chapter 63, Florida Statutes. If you check this subcategory, you should also check "Other."
(M) Juvenile Delinquencyall matters relating to juvenile delinquency pursuant to Chapter 985, Florida Statutes. If you check this subcategory, you should also check "Other."
(N) Juvenile Dependencyall matters relating to juvenile dependency and termination of parental rights pursuant to Chapter 39, Florida Statutes. If you check this subcategory, you should also check "Other."
(O) Name Changeall matters relating to name change, pursuant to section 68.07, Florida Statutes. If you check this subcategory, you should also check "Other."
(P) Paternityall matters relating to paternity pursuant to Chapter 742, Florida Statutes. If you check this subcategory, you should also check "Other."
ATTORNEY OR PARTY SIGNATURE. Sign the family court cover sheet. Print legibly the name of the person signing the family court cover sheet. Attorneys must include a Florida Bar number. Insert the date the family court cover sheet is signed. Signature is a certification that filer has provided accurate information on the family court cover sheet.
Family Court Cover Sheet
I. Case Style
IN THE CIRCUIT COURT OF THE ____________JUDICIAL CIRCUIT,
IN AND FOR ___________ COUNTY, FLORIDA
_____________________________
Petitioner Case No.: _____________
Judge: _______________
_________________________________________
and
______________________________________
Respondent
II. Type of Action/Proceeding. Place a check in the appropriate box beside the proceeding you are
initiating. If you are simultaneously filing more than one type of proceeding against the same
opposing party, such as a modification and an enforcement proceeding, complete a separate cover
sheet for each action being filed. If you are reopening a case, check that box and one of the
two boxes below it.
[] Initial Action/Petition
[] Reopening Case
[] Modification/Supplemental Petition
[] Petition Enforcement
*579
III. Type of Case. If the case fits more than one type of case, select the most definitive. If the most
definitive label is a subcategory (indented under a broader category label), place a check in
the category and subcategory boxes.
[] Simplified dissolution [] UIFSA Non-IV-D
[] Dissolution [] Other
[] Domestic violence [] Adoption under Chapter 63
[] Dating Violence [] Juvenile Delinquency
[] Repeat Violence [] Juvenile Dependency
[] Sexual Violence under Chapter 39
[] Support IV-D [] Name Change
[] Support Non-IV-D [] Paternity
[] UIFSA IV-D
IV. Has notice of any known related case, Family Law Form 12.900(h), been filed?
[] No.
[] Yes. If "Yes," list all related cases by name, case number, and court.
_______________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
ATTORNEY OR PARTY SIGNATURE
I CERTIFY that the information I have provided in this cover sheet is accurate to the best of my
knowledge and belief.
Signature _____________ FL Bar No.: _______________
Attorney or party (Bar number, if attorney)
_____________ ___________________
(Type or print name) Date
NOTES
[1] The other members of the Task Force were The Honorable Thomas M. Lynch, IV, Vice Chair and Circuit Judge, Seventeenth Judicial Circuit; Theodore Babbitt, West Palm Beach; Mitchell Berger, Berger Singerman, Fort Lauderdale; Anthony J. Carriuolo, Berger Singerman, Fort Lauderdale; Gene Cavallucci, Vice President and General Counsel, Harris Corporation, Melbourne; Philip Freidin, Freidin & Dobrinsky, P.A., Miami; Charles J. Grimsley, General Counsel, United Automobile Insurance Group, North Miami Beach; Merrick L. Gross, Akerman Senterfitt, Miami; Greg Holland, General Counsel, MPS Group, Inc., Jacksonville; The Honorable Edward C. LaRose, Appellate Judge, Second District Court of Appeal; Jason Murray, Carlton, Fields, P.A., Miami; Stephen E. Nagin, Miami; The Honorable James E.C. Perry, Justice, Florida Supreme Court (then Circuit Judge, Eighteenth Judicial Circuit); The Honorable Victoria Platzer, Circuit Judge, Eleventh Judicial Circuit; The Honorable Renee A. Roche, Circuit Judge, Ninth Judicial Circuit; Neal Roth, Grossman Roth Olin Meadow, Miami; Harvey Ruvin, Clerk of Court, Dade County; Maria A. Santoro, George, Hartz and Lundeen, Tallahassee; and The Honorable Peter D. Webster, Appellate Judge, First District Court of Appeal.
[2] Other significant recommendations, which the Court is unable to address in a rules case, but which are also extremely significant to the fair, efficient, and effective administration of justice, include several important recommendations related to technology-specifically, e-discovery, electronic data retrieval, e-filing, and a unified statewide case management system. These are: (1) to "develop sound principles for e-discovery practices as statewide court technology systems become upgraded to accommodate electronic filing, indexing, retrieval, storage, etc."; (2) "to strongly encourage and support pursuit of an electronic data system that empowers the courts and their users to access electronic data"; (3) to create an implementation plan to address e-filing and requiring that a "single portal for the submission of electronic court records be developed and implemented"; and (4) to "continue to pursue a unified statewide case management system."
[3] The others who filed comments were: the Family Law Section of The Florida Bar; The Honorable Diane M. Kirigin, General Magistrate, Delray Beach; The Honorable Karen E. Rushing, Clerk of the Circuit Court and County Comptroller, Sarasota County; The Honorable Judith L. Kreeger (Circuit Judge, Eleventh Judicial Circuit), The Honorable Sandy Karlan (Circuit Judge, Eleventh Judicial Circuit), The Honorable Hugh E. Starnes (Circuit Judge, Twentieth Judicial Circuit), and The Honorable Raymond Thomas McNeal (Circuit Judge, retired), filing jointly; Henry P. Trawick, Jr., an attorney and former member of the Civil Rules Committee; Levin Tannenbaum, a law firm in Sarasota; and Bill Wagner, an attorney in Tampa.
[4] Judge Webster also opposed the creation of complex litigation divisions because, in his view, such divisions have the potential of "skimming the cream from the top of our available judicial labor pool" and creating the "impression that some litigants are getting more justice from the system than are others." By our adoption of the rule, we express no view on the wisdom of individual circuits assigning judges to complex litigation divisions within the civil division.
[5] The form was first adopted in 1986. See Fla. Bar re Amendment to Rules of Civil Pro. Rule 1.100(c) (Caption of Pleadings), 488 So. 2d 57 (Fla. 1986). It was amended to change the citation to certain rules in the instructions for the form in 1996 and again, in 2005, to add one new category: "Challenge to proposed constitutional amendment." See In re Amendments to Fla. Rules of Civil Pro. (Two Year Cycle), 917 So. 2d 176, 188 (Fla. 2005); In re Amendments to Fla. Rules of Civil Pro., 682 So. 2d 105, 142-43 (Fla.1996).
[6] An original and nine paper copies of all comments must be filed with the Court on or before July 27, 2009, with a certificate of service verifying that a copy has been served on the Chair of the Task Force on the Management of Litigation in Complex Cases, Thomas H. Bateman III, Messer, Caparello & Self, P.A., 2618 Centennial Place, Post Office Box 15579, Tallahassee, Florida XXXXX-XXXX. The Task Force Chair has until August 17, 2009, to file a response to any comments filed with the Court. Electronic copies of all comments also must be filed in accordance with the Court's administrative order In re Mandatory Submission of Electronic Copies of Documents, Admin. Order No. SC04-84 (Fla. Sept. 13, 2004). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625082/ | 522 So. 2d 1212 (1988)
Wanda B. PATTISON, et al.
v.
The B.F. GOODRICH COMPANY, et al.
No. CA-8675.
Court of Appeal of Louisiana, Fourth Circuit.
March 10, 1988.
*1213 Curtis R. Boisfontaine, John W. Hite, III, Sally A. Shushan, Sessions, Fishman, Rosenson, Boisfontaine, Nathan & Winn, New Orleans, for defendants/appellants.
J. Paul Demarest, Edward J. Rivera, Favret, Favret, Demarest & Russo, New Orleans, for plaintiffs/appellees.
Before GARRISON, LOBRANO and WILLIAMS, JJ.
LOBRANO, Judge.
The only issues raised in this appeal are causation and quantum. Liability for the accident is not at issue.
Defendant appeals the trial court's award of damages to three plaintiff's, all occupants of a vehicle rear-ended by defendant's vehicle on March 16, 1985. The driver, Wanda Pattison was awarded $18,000.00 in general damages and $2,533.03 in specials; the front seat passenger, Rita Backhaus, was awarded $33,000.00 in general damages and $5,034.54 in specials; and the rear-seat passenger, Dawn Backhaus, $8,500.00 general damages and $436.18 in specials. We affirm.
Civil Code Article 1999 provides:
"When damages are insusceptible of precise measurement, much discretion shall be left to the court for the reasonable assessment of these damages."
The "much discretion" of Article 1999 should not be disturbed by this court absent a showing on the record that there was a clear abuse of that discretion. Coco v. Winston Industries, Inc., 341 So. 2d 332 (La.1977). However, if this court finds that there was an abuse its discretion, then our function is to raise the award to the lowest amount that could have been awarded, or lower it to the highest amount. Reck v. Stevens, 373 So. 2d 498 (La.1979).
Our initial question with respect to the awards of each plaintiff, then, is whether there has been an abuse of discretion. This threshold determination is to be made with respect to the particular facts and circumstances of this case. Reck v. Stevens, supra. And, in making that determination, our Supreme Court has repeatedly stated that review of prior awards is disapproved. Reck v. Stevens, supra; Gaspard v. LeMaire, 245 La. 239, 158 So. 2d 149 (1963). Prior awards may serve as an aid only where the present award is shown to be greatly disproportionate to the mass of similar awards, and not just a selected few. Reck v. Stevens, supra.
With these guidelines in mind, we discuss each plaintiff's award separately.
WANDA PATTISON
This plaintiff was the driver of the vehicle. She is a 42 year old housewife, who baby-sits for children in her home. She testified that upon impact she hit her left arm on the car door. She felt sore over her whole body for about a week; and within a couple of weeks developed problems with her left elbow. However, she did not seek medical attention until August of 1985, some five months after the accident. She explained that she had no health insurance, and believed the injury would resolve itself.
Her initial visit to Dr. Murphy, an orthopedic surgeon, was August 16, 1985. Her *1214 complaints and discomfort to her left elbow was diagnosed as typical tennis elbow syndrome. Dr. Murphy injected her elbow with cortisone and placed her arm in a strap.
Subsequent visits indicate the symptoms had improved somewhat, but that there was still discomfort in her left elbow. On December 5, 1985 Dr. Murphy's examination revealed a considerable flare-up. On her December 15, 1985 visit, this plaintiff was given another cortisone injection. In March of 1986, because of persistent pain, a third cortisone injection was given.
After visits in April and May proved fruitless, surgery was scheduled for June 4, 1986. Plaintiff was admitted to Methodist Hospital on an outpatient basis and the inflamed tissue was removed. The sutures were removed June 19th, however plaintiff testified her arm was wrapped in bandages and maintained in a bent position for about six weeks.
Her final visit to Dr. Murphy was October 8, 1986 at which time she was discharged. Dr. Murphy testified, and the trial court noted for the record, that she has a 2 inch scar on her elbow. Furthermore, Dr. Murphy opined that she has 5% disability of the arm as a result of the surgery.
Defendant's expert Dr. James Williams, examined this plaintiff on October 1, 1986. He doubted, because of the lapse of time between the accident and her complaints, that the accident was the cause of her injury. He suggested that her injury could have just as easily been caused by lifting small children in her baby-sitting chores. He agreed she had a 5% anatomical disability, but no functional disability.
Defendant argues causation was not proved. Specifically they refer to a statement signed by this defendant in June of 1985 wherein she indicated that no one was injured in the accident. In rebuttal, Mrs. Pattison testified she was thinking of "injuries" in terms of broken bones and bleeding which required an immediate trip to the hospital. The trial judge admonished her that she should not have signed it if she, or the other occupants were having problems. The record is clear, however, that the trial judge believed Dr. Murphy when he opined that the injury was caused by trauma as a result of the accident. This conclusion is substantiated by the fact that this plaintiff had no elbow problems prior to the accident even though she had been lifting infants from time to time. There is no error in this finding.
Defendant further argues that the award of $18,000.00 is too high and cites numerous cases for comparison. Plaintiff cites just as many which award higher amounts. Each distinguishes the other's cases.
We need not discuss these comparison cases, since we find no abuse of discretion in the award. Evaluating the medical testimony and the particular facts and circumstances of this plaintiff, we cannot say there is abuse of such a magnitude as to warrant a modification of the judgment.
RITA BACKHAUS
This plaintiff was the guest passenger riding in the front seat at the time of the accident. She is the 64 year old housewife-mother of the driver. Upon impact, she struck the dashboard with her chest.
She testified that approximately two weeks after the accident she developed a burning sensation in her hip, and pains in her right leg. In May of 1985 she called her family physician, Dr. Mancuso who prescribed Mortin for her pain. Prior to the accident, Dr. Mancuso had treated this plaintiff for arthritis in her right hand, and she felt that he could prescribe medication to control the pain in her hip and leg.
Her symptoms did not subside, however, so she visited Dr. Mancuso in July. He increased her dosage of Mortin. According to this plaintiff the medication did not help so she saw Dr. Murphy on September 24, 1985.
After examination, Dr. Murphy felt she was suffering from nerve root irritation and prescribed Naprosyn for the pain. Subsequent visits indicate the medication helped the discomfort, however the pain continued.
*1215 Because of a severe increase of leg and hip pain and being bedridden for 3 days, Ms. Backhaus was hospitalized. She was placed in traction for four days and underwent a CAT scan. The CAT scan revealed degenerative changes in the lower lumbar region. Immediately subsequent to her release from the hospital there was some improvement, and as of January, 1986, Dr. Murphy found that her pain was intermittent. At that time he placed her in a corset.
The last visit to Dr. Murphy prior to trial was March 11, 1987. He had not discharged her and opined that it is possible her condition may persist ad infinitum. It was his conclusion that the trauma from the car accident aggravated a preexisting arthritic condition that was without symptoms prior to the accident. He assigned a 5% to 10% functional disability depending on future treatment.
Defendant's expert Dr. Williams examined this plaintiff once, on October 1, 1986. He opined:
"It was my opinion based on her history and examination that she had sustained a ligamentous strain in her lower back when she was involved in an automobile accident on March 17, 1985. The patient had evidence of a previously existing lumbar spondylosis. It was my opinion that this existed prior to [the] March, 1985 accident."
Dr. Williams suggested that the aggravation of Mrs. Backhaus' arthritic condition was due to her obesity. He also questioned the lapse of time between the accident and her complaints.
Defendant argues causation was not proved. In support thereof, he cites the expert opinion of Dr. Williams, as well as the failure of plaintiff to call Dr. Mancuso, her initial physician. Defendant urges that the failure to call Dr. Mancuso creates an adverse presumption against this plaintiff, citing Mills v. Sentry Insurance Co., 463 So. 2d 20 (La.App. 5th Cir.1985), writ denied, 464 So. 2d 1383.
While we agree that failure to call one's treating physician creates a presumption that his testimony would be unfavorable, that presumption is rebuttable. Id. See also, Bagley v. Commercial Union Insurance Company of New York, 216 So. 2d 102 (La.App. 1st Cir.1968). In this case, it is clear the trial court was satisfied that the accident aggravated plaintiff's dormant degenerative condition. She had no prior back, hip or leg problems, only arthritis in her right hand. It is reasonable that she would call her family physician first, and then seek specialized medical help when her problems persisted.
We cannot conclude that the award to this sixty-four year old housewife is a clear abuse of discretion. Considering Dr. Murphy's opinion as to future problems, the amount of pain and discomfort experienced by this plaintiff, the side effects of the prescribed medications, and the fact that she was not discharged as of the trial date, we find no reason to disturb the award. Although we may have awarded a different amount at the trial level, we are not to substitute our judgment based on the recorded word for that of the trial judge who listened to, and witnessed the live testimony.
DAWN BACKHAUS
This plaintiff is the 23 year old daughter of Rita Backhaus. She was a rear seat passenger at the time of the collision. On impact she struck her right leg on the seat in front of her.
She first experienced or noticed pain in her right knee about two weeks after the accident while bowling. Subsequently the pain increased and her knee began to swell. On September 5, 1985 she visited Dr. Murphy. On this initial visit, Dr. Murphy stated:
"Basically, an examination of the knee itself was unremarkable. There was no effusion, no instability, no particular tenderness. There was tenderness however located to the area of bursa over the proximal tibia there and [I] basically felt she had a bursitis and placed her on anti-inflammatory medication and gave her some ointment to use and advised her to return for a follow-up evaluation."
*1216 Subsequent visits to Dr. Murphy on September 19th and October 3, 1985 indicated improvement in her symptoms. However, on December 12, 1985 swelling was noted, as well as increased pain. She was again placed on anti-inflammatory medication.
Because of increased complaints of pain, Dr. Murphy injected her knee with a cortisone type medication on January 9, 1986. A second injection was given during the March 6, 1986 visit.
This plaintiff was finally discharged on April 17, 1986. Dr. Murphy opined that the bursitis flare up this plaintiff experienced can be traumatically induced, and related its cause to the accident.
Dr. James Williams, defendant's expert, examined this plaintiff on October 7, 1986, approximately 6 months after her discharge from Dr. Murphy. He could find no abnormality nor evidence of bursitis. Based on the onset of pain two weeks subsequent to the accident, he opined her bowling activities could have caused the problem.
With respect to defendant's argument that there is a lack of causation, we disagree. Based on the medical evidence, and this plaintiff's testimony that she had no knee problems prior to the accident, the trial court could reasonably conclude the accident was the cause of her injuries.
Although we find the damage award on the higher end of the permissible scale, we cannot conclude that it is a clear abuse of discretion to warrant a reduction. This young plaintiff was a fairly active person who enjoyed numerous physical activities. There is no doubt she was restrained, for at least an 11 month period, from participating in those activities without some discomfort and pain. Although she has no residual disability, the facts and circumstances of this particular plaintiff do not warrant interference.
For the reasons assigned, the judgment is affirmed.
AFFIRMED.
WILLIAMS, J., dissents with reasons.
WILLIAMS, Judge, dissenting.
In view of the signed statement indicating no injuries had been sustained as a result of the accident and the failure to seek medical treatment until a significant amount of time had elapsed after the accident, I would be compelled to hold that each of the plaintiffs had failed to establish causation. In further support of this conclusion is the failure of one plaintiff to call her treating physician as a witness, and as to all of the plaintiffs, the consistency of the types of injuries with activities and/or conditions of the women, i.e., back injuries and obesity; knee injury and bowling.
Also, even if plaintiffs had carried their burden of proving causation, I would have serious reservations about the amount of extremely generous general damages awarded to them. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625071/ | 15 So. 3d 533 (2008)
Randall STEWART
v.
James BRADLEY and Mary Bradley.
Larry Morgan
v.
James Bradley and Mary Bradley.
2070574 and 2070575.
Court of Civil Appeals of Alabama.
November 14, 2008.
Certiorari Denied February 6, 2009 Alabama Supreme Court 1080275.
*536 James A. Kee, Jr., and Angela Collier Shields of Kee & Selby, LLP, Birmingham, for appellant Randall Stewart.
Joseph H. Driver and Kathy R. Davis of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellant Larry Morgan.
W. Brian Collins, Birmingham; and H. Arthur Edge III, Birmingham, for appellees.
MOORE, Judge.
Randall Stewart and Larry Morgan appeal separately from a judgment entered on a jury's verdict in favor of James Bradley and Mary Bradley. We reverse and remand for a new trial.
Procedural History
On May 6, 2003, James Bradley and Mary Bradley sued Randall Stewart and Larry Morgan seeking damages arising from the alleged negligent construction of their house. In their complaint, the Bradleys asserted claims of negligent failure to warn, negligent installation and construction, negligent supervision, misrepresentation, suppression, breach of implied warranty of habitability, breach of contract, and "third party beneficiary."
The trial court entered summary judgments in favor of Stewart and Morgan as to all claims asserted against them except the claims asserting negligent installation and construction, negligent supervision, and breach of contract. The case was tried before a jury on August 13, 2007. At the conclusion of the Bradleys' case, Stewart and Morgan filed separate motions for a judgment as a matter of law. Both Stewart and Morgan again moved for a judgment as a matter of law at the conclusion of all the evidence.
The jury rendered a verdict in favor of the Bradleys. On September 12, 2007, the trial court entered a judgment on the jury's verdict, awarding the Bradleys damages in the amount of $200,000. Morgan and Stewart filed separate postjudgment motions for a judgment as a matter of law or, in the alternative, motions for a new trial. Those motions were denied by operation of law on December 17, 2007. See Rule 59, Ala. R. Civ. P. On January 23, 2008, Stewart and Morgan each appealed to the Alabama Supreme Court; that court transferred the appeals to this court, pursuant to § 12-2-7(6), Ala.Code 1975. We have consolidated the appeals.
On appeal, both Stewart and Morgan challenge the denial of their motions for a judgment as a matter of law and the trial court's refusal to give certain of their requested jury charges. Stewart and Morgan also challenge the denial of their motions for a new trial.
Factual History
Stewart and Morgan are licensed home builders. In 2001, they collaborated on a "spec" house on Funderburg Bend Road. *537 On June 19, 2001, the Bradleys entered into a "Sales Contract" with Stewart and Morgan in which the Bradleys agreed to purchase the house.
On June 29, 2001, the parties attended a real-estate closing regarding the property. At that closing, the Bradleys executed a document entitled "Limited Warranty Agreement," which provided, in part:
"1. Warranty Period. The Seller does hereby provide to the Buyer this Limited Warranty Agreement on the Dwelling for a period of one year (the `Limited Warranty Period') beginning on the date of conveyance of title to the Buyer or the date of initial occupancy of the Dwelling, whichever occurs first (the `Limited Warranty Commencement Date'), and the Buyer does hereby agree to the terms of this Limited Warranty Agreement and further agrees to accept this Limited Warranty Agreement as the only warranty given, in lieu of all other warranties of any kind, expressed or implied, with respect to the construction of the Dwelling and the sale thereof to the Buyer. The Limited Warranty Period has been negotiated between the Seller and the Buyer as a part of the negotiation of the terms and provisions of the Contract.
"2. Limited Warranty. The Seller hereby warrants to the Buyer that, for and during the Limited Warranty Period, the Dwelling will be free from Latent Defects, as hereinafter defined. If a latent Defect occurs in an item which is covered by this Limited Warranty Agreement, the Seller will repair, replace, or pay to the Buyer the reasonable cost of repairing or replacing, any such item. The Seller shall in its sole discretion determine whether to repair, replace or pay the reasonable cost of repairing or replacing any such item. THE LIABILITY OF THE SELLER IS STRICTLY LIMITED TO THE OBLIGATION TO REPAIR, REPLACE OR PAY THE REASONABLE COST OF REPAIRING OR REPLACING, ANY SUCH ITEM, AND ANY RIGHT THAT THE BUYER MIGHT HAVE TO RECOVER ANY OTHER OR ADDITIONAL DAMAGES IS HEREBY WAIVED AND EXCLUDED. THE BUYER ACKNOWLEDGES THAT THE SOLE REMEDY AVAILABLE TO THE BUYER HEREUNDER IS THE RIGHT TO REQUIRE THE SELLER TO REPAIR, REPLACE OR PAY THE REASONABLE COST OF REPAIRING OR REPLACING ANY SUCH ITEM. Steps taken by the Seller to correct any Latent Defect under this Limited Warranty Agreement shall not extend the Limited Warranty Period.
"....
"4. LIMITATION UPON LIABILITY. THE SOLE REMEDY AVAILABLE TO THE BUYER UNDER THIS LIMITED WARRANTY AGREEMENT IS THE RIGHT TO REQUIRE THE SELLER TO REPAIR, REPLACE OR PAY THE REASONABLE COST OF REPAIRING OR REPLACING LATENT DEFECTS, AS HEREIN DEFINED, IN THE DWELLING. THE SELLER'S TOTAL LIABILITY UNDER THIS LIMITED WARRANTY AGREEMENT SHALL NOT EXCEED THE ORIGINAL PURCHASE PRICE PAID TO THE SELLER UNDER THE CONTRACT, LESS THE VALUE OF THE REAL PROPERTY UPON WHICH THE DWELLING IS LOCATED. THIS LIMITED WARRANTY AGREEMENT DOES NOT EXTEND TO OR INCLUDE LIABILITY FOR INDIRECT OR CONSEQUENTIAL DAMAGES.
"....
*538 "9. Opportunity to Perform. Prior to filing any action under this Limited Warranty Agreement, the Buyer must give to the Seller reasonable notice of and a reasonable opportunity to repair, replace or pay the reasonable cost of repairing or replacing any Latent Defect covered hereunder.
"....
"13. Notice to the Seller. The Buyer shall notify the Seller in writing before the expiration of the Limited Warranty Period of any defect covered by this warranty.... FAILURE OF THE BUYER TO GIVE SUCH WRITTEN NOTICE TO THE SELLER BEFORE THE EXPIRATION OF THE LIMITED WARRANTY PERIOD SHALL BAR ANY RIGHT TO RECOVERY BY THE BUYER PURSUANT TO THIS LIMITED WARRANTY.
"....
"15. WAIVER OF WARRANTIES AND CLAIMS. EXCEPT AS TO ANY VA/FHA WARRANTY DELIVERED TO THE BUYER AT CLOSING, IF ANY, THIS LIMITED WARRANTY AGREEMENT IS GIVEN IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, HABITABILITY AND WORKMANSHIP, AND IS ALSO IN LIEU OF ANY CLAIMS FOR CONSEQUENTIAL DAMAGES, MENTAL ANGUISH OR DISTRESS, AND FOR DAMAGES BASED UPON NEGLIGENCE, FRAUD OR MISREPRESENTATION, AND THE BUYER HEREBY EXPRESSLY WAIVES AND DISCLAIMS ANY SUCH WARRANTIES AND CLAIMS WITH RESPECT TO BOTH THE DWELLING AND THE REAL PROPERTY UPON WHICH THE DWELLING HAS BEEN CONSTRUCTED."
(Capitalization and underlining in original.)
According to the Bradleys, they moved into the house in the fall of 2001 and they immediately had problems with the house. It is undisputed that the Bradleys contacted Stewart and Morgan complaining of problems with the house during the fall of 2001. Stewart and Morgan described Mary Bradley's initial complaint as involving only "punch list" items. However, Mary described her initial complaints as involving, among other things, cracking, loose molding, and unlevel floors. Mary testified as to her communications with Stewart and Morgan concerning problems with the house:
"I'll go back to the start of it. When it first cracked and the molding around the door started coming loose, I called them out and I asked them why because we had moved furniture in the house and it had got it off level [sic]. They patched it up. They done some painting, stuff like that. The next time I had to call them out there, the children was running across the floors and the dishes trying to fall out and all that unlevel [sic]. The center beam was off.... [and] the floors was falling through. I had to take two screws and screw my curio up to the wall to level it up."
James Bradley testified that, after moving in, he noticed that
"just that everything that you walked around, everything when you put all the furniture in there and got weight on it, it would rattle as you walked through there and everything.... The floors wasn't level.... The water coming off the hill and ran up underneath the house when you got real rainy season, muddy.... I liked the house except for it not being level."
*539 James testified that he telephoned either Stewart or Morgan and that "[t]hey told me that wasn't nothing the matter with it. They would send somebody out there and level it up the best they could. Even after they did that, the thing was still way out of level."
James testified that Stewart and Morgan came back "again and again" and that he thought that "they sent somebody out there just about all the time to look at it every time you would say something about it but they never did fix it." Mary acknowledged that, after her contacts with Stewart and Morgan in the fall of 2001, her next contact with them had occurred in December 2002. It is undisputed that Stewart and Morgan talked with the Bradleys in January 2003 about their complaints.
On February 5, 2003, Mary wrote to Stewart and Morgan, again setting out her complaints about the house. Later in February 2003, after receiving Mary's letter, Stewart and Morgan went to the Bradleys' house to make additional repairs; they were accompanied by a representative of the manufacturer of the engineered floor system. According to Stewart and Morgan, they had been prepared to undertake whatever repairs were necessary at the house but they were specifically prepared to work on the foundation, the floor system, and the regrading of the lot. However, Mary's son asked Stewart and Morgan to leave the Bradleys' property without allowing them to undertake any additional repairs. The Bradleys instructed Stewart and Morgan to contact their attorney. Mary testified that, as of February 2003, she did not want Stewart and Morgan to continue to work on her house
"because they done been out there two or three times, [my son] and I were sitting at the dining room table, and we heard somebody digging under the house. We didn't know who or what.... It was the two of them, and they were digging, laying concrete to put the pillars on to hold the house up. The others didn't have it or they couldn't find it. I told them, I said `No. No. Stop. I want an inspection of this house so I know what has got to be fixed to have this house fixed right for me to live in and it not fall down next month.' So they never came back out. I told him I wanted an inspector out there, and he never came out."
Although Stewart testified that the Bradleys had refused to allow him to make the needed repairs, he acknowledged at trial that, by February 2003, he already had been in the crawl space of the Bradleys' house on at least four separate occasions.
The Bradleys moved out of the house in March 2003. After moving out of the house, the Bradleys hired professionals to conduct inspections of the property. Those inspections revealed that the foundation, flooring system, brick veneer, and waterproofing systems of the house had been improperly constructed and improperly installed.[1] Additionally, the inspectors discovered that the house had been "shimmed" or propped up with wooden blocks in multiple areas of the crawl space in an attempt to level it.
Analysis
The trial court allowed the Bradleys' claims of negligent installation and construction, negligent supervision, and breach of contract to go to trial. On appeal, *540 Stewart and Morgan assert that the trial court erred in denying their motions for a judgment as a matter of law as to all three of those claims.
"In Delchamps, Inc. v. Bryant, 738 So. 2d 824 (Ala.1999), our supreme court explained the standard of review applicable to a trial court's ruling on a motion for a judgment as a matter of law:
"`When reviewing a ruling on a motion for a [judgment as a matter of law ("JML")], this Court uses the same standard the trial court used initially in granting or denying a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So. 2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So. 2d 1350 (Ala.1992). For actions filed after June 11, 1987, the nonmovant must present "substantial evidence" in order to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Motion Industries, Inc. v. Pate, 678 So. 2d 724 (Ala.1996). Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court's ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So. 2d 1126 (Ala.1992).'
"738 So.2d at 830-31."
Leonard v. Cunningham, 4 So. 3d 1181, 1184 (Ala.Civ.App.2008). Using this standard of review, we review the Bradleys' claims to determine if they were properly submitted to the jury for resolution.
The Enforceability of the Limited-Warranty Agreement
In Turner v. Westhampton Court, L.L.C., 903 So. 2d 82 (Ala.2004), our supreme court held that the parties to the sale of a new house can validly agree to limit the rights and remedies available to the home buyer in the event the house does not conform to the buyer's expectations. Addressing the issue as a matter of first impression, the court continued:
"In Ex parte Miller, 693 So. 2d 1372, 1376 (Ala.1997), a case decided under Alabama's version of the Uniform Commercial Code, we held that a company can limit its warranty coverage. In Southern Energy Homes v. Washington, 774 So. 2d 505, 511 (Ala.2000), we held that a warranty can require a certain method by which the warranty holder notifies the party giving the warranty of a defect covered by the warranty. See also Copenhagen Reinsurance Co. v. Champion Home Builders Co., 872 So. 2d 848 (Ala.Civ.App.2003). If a purchaser were to attempt to hold the seller liable when the purchaser had not notified seller pursuant to the method set out in the warranty, the seller would not be liable. While these cases are based upon Alabama's Commercial Code, we see no reason to limit the rule to cases concerning `goods.' Rather, we are led by the principle of freedom of contract. Therefore, we hold that companies selling houses are similarly capable of limiting warranty coverage.
*541 "....
"Though we have never decided whether one can effectively disclaim the implied warranty of habitability, one can disclaim an implied warranty of personal property. Ala.Code 1975, § 7-2-316(3). Because it was the existence of an implied warranty as to personal property that was said to justify the recognition of an implied warranty of habitability of a new house, should we not hold that this court-created warranty can be contracted away where a reasonable express warranty of some duration is given to the purchaser of the new house in lieu of that implied warranty?
"....
"These considerations lead us to conclude that the principle of freedom of contract permits a party to effectively disclaim the implied warranty of habitability. To succeed on their claim of breach of the implied warranty of habitability then, the Turners would have to offer substantial evidence indicating that they did not disclaim the implied warranty of habitability."
903 So.2d at 91-93.
The evidence showed that the builder in Turner had given the home buyer a "Limited New Home Warranty" essentially identical to the one at issue in this case. 903 So.2d at 86. Because the evidence established that the purchasers in Turner could read the written warranty and because the purchases had produced no evidence indicating that they had not agreed to disclaim all implied warranties, the supreme court affirmed the summary judgment in favor of the home builder as to the purchasers' claim of breach of the implied warranty of habitability.
The purchasers also appealed the summary judgment in favor of the builder as to their breach-of-contract claim. In addressing that claim, the supreme court stated:
"The Turners' third allegation is that Westhampton breached the contract of sale by tendering a poorly built house. Specifically, the Turners argue that Westhampton contracted to build the house in accordance with the skill and abilities of a homebuilder and that Westhampton failed to perform this contractual duty. While the Turners characterize this as a cause of action for breach of contract, the cause of action is more accurately classified as one for the breach of the implied warranty of workmanship.
"... In the context of the sale of a new house, a builder-vendor such as Westhampton is obligated to construct a house that it will offer for sale in a workmanlike manner. Stephens v. Creel, 429 So. 2d 278, 280 (Ala.1983). This obligation manifests itself in the implied warranty of workmanship. While improper or faulty construction constitutes a technical performance of the contract and may survive a pure breach-of-contract action, an action alleging the breach of an implied warranty, such as the implied warranty of workmanship, can overcome this obstacle.
"....
"Upon purchasing the house, the Turners signed the warranty provided by Westhampton. The warranty, as discussed above, included a waiver of the right to sue under any other theory of breach of warranty, express or implied. In fact, the warranty explicitly stated that the Turners waived the right to sue based on a breach of the implied warranty of workmanship. Because the warranty contained a disclaimer of the very claim the Turners here allege, the trial court did not err in entering a *542 summary judgment in favor of Westhampton on this claim."
903 So.2d at 93-94.
The Bradleys urge this court to find the limited-warranty agreement unenforceable under existing Alabama caselaw. However, all the cases cited by the Bradleys for this point predate Turner, supra. This court, as an intermediate court of appeals, is bound to follow the existing precedent of our supreme court. See Ala. Code 1975, § 12-3-16. Pursuant to Turner, the warranty is generally enforceable if supported by consideration and voluntarily and knowingly agreed to by the Bradleys.
The record affirmatively shows that the Bradleys signed the agreement indicating their assent to the limited warranty. The record contains no evidence to indicate that the Bradleys were deceived or coerced into agreeing to the limited warranty. The Bradleys do not even argue that point. They do argue, however, that they did not request a limited warranty in the sales agreement and, therefore, that the warranty could not have been supported by any consideration. In Turner, the supreme court considered similar facts and concluded that the builder in that case had offered the limited warranty at the closing in consideration for the purchasers' waiving all other warranties. The court found such consideration to be sufficient. 903 So.2d at 93. We conclude that the Bradleys' warranty was likewise supported by sufficient consideration and that, by accepting the limited warranty at the closing, the Bradleys modified their earlier agreement with Stewart and Morgan.
The Bradleys next argue that the language in the warranty purporting to disclaim all causes of action alleging negligence and purporting to disclaim any right to recover mental-anguish damages violates the public policy of this state. We disagree. See Ex parte Holland Mfg. Co., 689 So. 2d 65 (Ala.1996) (concluding that contracts protecting one from the consequences of one's own negligence are valid and enforceable if the parties knowingly, evenhandedly, and for valid consideration, enter into an agreement whereby one party agrees to indemnify against the other party's own wrongs); Nationwide Mut. Ins. Co. v. Hall, 643 So. 2d 551 (Ala.1994) (concluding that an agreement to indemnify a party for its own negligence is enforceable if the requisite intent to do so is clear); and Sears Termite & Pest Control, Inc. v. Robinson, 883 So. 2d 153 (Ala.2003) (rejecting the argument that a limitation in a contract against recovery of consequential and indirect damages, including emotional-distress damages, was unconscionable). "Contracting parties have a right to express the limitations under which they will be bound, and such clearly manifested limitations will be recognized by the courts." Campbell v. Southern Roof Deck Applicators, Inc., 406 So. 2d 910, 913 (Ala. 1981) (citing United States Fid. & Guar. Co. v. Jacksonville State Univ., 357 So. 2d 952 (Ala.1978)). See also McDonald v. Schwartz, 706 So. 2d 1230, 1232 (Ala.Civ. App.1997) ("Where the parties have set out in a written contract the warranties agreed upon and have provided a remedy in case of a breach of warranty, the remedy thus provided is exclusive.").
Because the limited-warranty agreement is valid, we must enforce that agreement pursuant to its plain terms. Therefore, we hold that the Bradleys waived their claims alleging breach of the implied warranties of habitability and workmanship, their claims of general negligence, and their right to seek damages for mental anguish. We, therefore, conclude that the trial court erred in denying Stewart's and Morgan's motions for a judgment as a matter of law as to the Bradleys' negligent-installation, *543 negligent-construction, and negligent-supervision claims, as well as to their right to recover mental-anguish damages.
Breach-of-Contract Claim
The Bradleys did not, however, waive their right to pursue a breach-of-contract claim against Stewart and Morgan by virtue of the limited-warranty agreement. As recognized in Turner, supra:
"An action alleging a breach of warranty is a subset of a breach-of-contract action.... In the context of construction of a house, this Court explained in Stephens[ v. Creel, 429 So. 2d 278 (Ala. 1983),] that `[b]y its very nature it is the failure to construct the house in a workmanlike manner that constitutes the breach' of the warranty. 429 So.2d at 280."
903 So.2d at 90-91. Thus, by alleging that Stewart and Morgan had failed to convey to them a properly constructed house and had failed to honor their obligation to repair the defects in that house, the Bradleys alleged that Stewart and Morgan had breached their obligations under the warranty agreement.
Stewart and Morgan, relying on Turner, argue that the Bradleys failed to comply with the notice requirement of the warranty agreement and that, as a result, they waived any breach-of-express-warranty claim that may have accrued to them. We disagree because we find Turner distinguishable.
In Turner, the purchasers provided no notice at all to the builder until four years after the warranty had expired, and there was no indication in Turner that the builder had accepted or acted upon the post-warranty notice provided by the purchasers. In this case, however, evidence was presented to indicate that the Bradleys had orally notified Stewart and Morgan within the warranty period that the house was cracking, sagging, and had become "unlevel," implying foundation problems with the house.[2] The evidence also indicated that Stewart and Morgan had acted on the Bradleys' oral notice and had attempted to repair the house. James Bradley testified that the builders had attempted "again and again" to level up the house but that they could not fix the problem. Additionally, Stewart admitted that he had been in the crawl space under the house multiple times while the Bradleys were living in the house. Other evidence indicated that someone had attempted to prop up the foundation by "shimming" it in numerous places in the crawl space under the house.
Based on that evidence, a reasonable jury could conclude that Stewart and Morgan had waived their right to written notice by accepting oral notice and actual knowledge as a substitute.
"Waiver is defined as the voluntary surrender or relinquishment of some known right, benefit, or advantage. City of Montgomery v. Weldon, 280 Ala. 463, 195 So. 2d 110 (1967). However, it is well established that a party's intention to waive a right is to be ascertained from the external acts manifesting the waiver. Givens v. General Motors Acceptance Corp., 56 Ala.App. 561, 324 So. 2d 277 (1975). This intention to waive a right may be found where one's course of conduct indicates the same or is inconsistent with any other intention."
Waters v. Taylor, 527 So. 2d 139, 141 (Ala. Civ.App.1988). See also T.J. Stevenson & *544 Co. v. 81,193 Bags of Flour, 629 F.2d 338 (5th Cir.1980) (despite contractual provision requiring notice of breach of warranty to be sent by registered mail, seller's responses to buyer's initial noncomplying complaints established a course of performance allowing that notice provision to be disregarded); and Becker Roofing Co. v. Pike, 230 Ala. 289, 160 So. 692 (1935) (contractual provision requiring buyer to notify seller in writing of leaks in roof held waived in view of undisputed evidence indicating that buyer had repeatedly notified seller by telephone, that seller had accepted those calls and promised to repair, and that seller's efforts to repair had been unsuccessful). See also § 7-2-208, Ala. Code 1975 (addressing course of performance) (repealed January 1, 2005, by Ala. Acts 2004, Act 2004-524); and § 7-2-209, Ala.Code 1975 (addressing modification, rescission, and waiver).
Stewart and Morgan next argue that the Bradleys waived any right to assert a breach-of-contract claim based on the limited warranty by failing to give them a reasonable opportunity to make the necessary repairs. Stewart and Morgan testified that they had been prepared to repair the Bradleys' foundation and flooring system but that the Bradleys had prevented them from doing so. However, the record contains testimony from the Bradleys to indicate that they had allowed Stewart and Morgan a reasonable opportunity to repair the defects. For example, James Bradley testified that he had repeatedly notified Stewart and Morgan of the problems with the house and that Stewart and Morgan had attempted to correct those problems "again and again." Additionally, Stewart testified that he was in the crawl space of the Bradleys' house "at least four times" while the Bradleys lived in the house. Further, expert testimony indicated that someone had attempted to prop up the Bradleys' house by placing shims and wedges throughout the crawl space in an attempt to level the foundation of the house.
We conclude that the trial court did not err in allowing the jury to decide the breach-of-contract claim because a factual dispute existed as to whether the Bradleys had allowed Stewart and Morgan a reasonable opportunity to repair the house. See General Motors Corp. v. Earnest, 279 Ala. 299, 184 So. 2d 811 (1966) (recognizing that jury could properly have found that, after the purchaser allowed the seller 15 tries to repair vehicle, purchaser had allowed seller reasonable opportunity but that seller could not honor its warranty); DeLoach v. General Motors Corp., 187 Ga.App. 159, 159, 369 S.E.2d 484, 485 (1988) (buyers of defective new automobile were not entitled to reversal of judgment entered on jury's verdict in favor of seller in a breach-of-warranty action against seller when purchasers did not allow seller an opportunity, within a reasonable time, to replace or repair the defects under the terms of the warranty); and Woodruff v. Johnson, 560 So. 2d 1040, 1041 (Ala.1990) ("A directed verdict [now a judgment as a matter of law] is properly granted only where there is a complete absence of proof on a material issue or where there are no disputed questions of fact for the jury's determination.").
Good Count/Bad Count
On appeal, Stewart asserts that this case presents a "good count-bad count" situation and requires, at a minimum, reversal for a new trial. See Larrimore v. Dubose, 827 So. 2d 60 (Ala.2001) (discussing good count-bad count situations); and Aspinwall v. Gowens, 405 So. 2d 134, 138 (Ala.1981). We agree. We have concluded that the Bradleys' breach-of-contract claim was properly submitted to the jury while the negligent-installation, *545 negligent-construction, and negligent-supervision claims were improperly submitted to the jury. Stewart properly presented that argument to the trial court in his motions for a judgment as a matter of law. Because the jury returned a general verdict, we are unable to determine whether the damages awarded by the jury were based on the good count breach of contract or the bad counts the negligence counts. Thus, the judgment as to Stewart must be reversed, and this cause must be remanded for a new trial only on the breach-of-contract claim against Stewart. See Larrimore, supra; and Aspinwall, supra. See also AmSouth Bank v. Tice, 923 So. 2d 1060 (Ala.2005) (reversing for new trial because of good count-bad count situation); and Delta Health Group, Inc. v. Stafford, 887 So. 2d 887 (Ala.2004) (accord).
Jury Instructions
Morgan failed to argue the "good count-bad count" issue on appeal. We, therefore, cannot reverse the judgment as to him on that ground. "We will not reverse a trial court's judgment based on arguments not presented to the trial court or based on arguments not made to this court." Brown v. Wal-Mart Stores, Inc., 864 So. 2d 1100, 1104 (Ala.Civ.App. 2002). However, Morgan, as well as Stewart, did argue on appeal that the trial court erred to reversal by refusing to properly instruct the jury as to the appropriate measure of damages for injury to real property. The trial court instructed the jury as follows:
"Damages ... for a breach of contract is the sum which would place the injured party in the same condition that he or she would have occupied if the contract had not been breached. You may consider the repair cost claim by the Plaintiffs in determining the cost of damages on this issue. If you are reasonably satisfied from the evidence that the Plaintiff or the Plaintiffs are entitled to recover and you arrive at an amount of your award, you should then determine from the evidence the date the Plaintiff was entitled to the damages arrived by you and then you can add interest at the rate of 6 percent per annum from the date that you find the Plaintiff was entitled to receive the damages to the present date of today. Other damages, where the contractual duty or obligation is so related with matters of mental concern or apprehensiveness or with the feelings of the party to whom the duty is owed, that breach of that duty will necessitate or reasonably result in mental anguish and such matters were reasonably within the contemplation of the parties when the contract was made, then in such event, if the Plaintiffs are entitled to recover, they would be entitled to recover such sum as would reasonably compensate them for mental anguish.... The Plaintiffs claim compensation for property damages to real property. Evidence has been introduced in this case about the expense of repairs to this house. The evidence may be considered by you in determining the extent of damage suffered by the Plaintiffs and is going to the question of market value. If the house could be restored to its former condition at a reasonable expense, which would exceed its reasonable market value at the time of its damage as found by you from the evidence, such reasonable repair expense would represent the damage which the Plaintiffs would be entitled to recover. If the property was so damaged that it could not be restored to its former condition and value at a reasonable expense equal to or less than its reasonable market value at the time of its damage as found by you from the evidence, then the Plaintiff would only *546 be entitled to recover the market value less any salvage value as found by you from the evidence. The measure of damages for damage to real property is the difference in the reasonable market value of the property before its damage and the reasonable market value immediately after the damage."
Thus, the trial court instructed the jury as to the measure of damages for injury to real property and for injury to personal property. See Garner v. Kent Excavation, Inc., 532 So. 2d 1033, 1034 (Ala.Civ.App. 1988) (addressing the proper measure of damages for injury to real property and injury to personal property); Alabama Pattern Jury Instructions Civil ("APJI") 11.26 (___ ed. ___) (pattern jury instructions for measure of damages for injury to real property); and APJI 11.24 (pattern jury instruction regarding injury to personal property). We agree with Morgan that the trial court's instruction was erroneous and prejudicial to him and Stewart.
In this case, the parties specified in the limited-warranty agreement the measure of damages to be applied in the event of a latent defect. In that agreement, they agreed that
"[i]f a Latent Defect occurs in an item which is covered by this Limited Warranty Agreement, the Seller will repair, replace, or pay to the Buyer the reasonable cost of repairing or replacing, any such item. The Seller shall in its sole discretion determine whether to repair, replace or pay the reasonable cost of repairing or replacing any such item. THE LIABILITY OF THE SELLER IS STRICTLY LIMITED TO THE OBLIGATION TO REPAIR, REPLACE OR PAY THE REASONABLE COST OF REPAIRING OR REPLACING, ANY SUCH ITEM."
(Capitalization in original.) As a result, the trial court should have instructed the jury that, if it found in favor of the Bradleys, it could award damages equal to the "reasonable cost of repairing or replacing" the latent defects in the Bradleys' house. As a result, the instruction given by the trial court as to the proper measure of damages was erroneous.
Additionally, the trial court instructed the jury that it could properly consider an award of mental-anguish damages for Mary Bradley if it found in favor of the Bradleys. However, as we concluded above, the Bradleys waived any such right of recovery by virtue of their acceptance of the limited warranty. That warranty agreement expressly and conspicuously stated that it was given in lieu of any claim for mental anguish or distress. Therefore, the giving of that instruction was also erroneous.
In Southeast Environmental Infrastructures, L.L.C. v. Rivers, 12 So. 3d 32 (Ala. 2008), the supreme court stated:
"The standard for reviewing a trial court's charge to the jury is as follows:
"`"In a jury case, a party is entitled to have its case tried to a jury that is given the appropriate standard by which to reach its decision, and a wrongful refusal of a requested jury charge constitutes a ground for a new trial. See, C.I.T. Financial Services, Inc. v. Bowler, 537 So. 2d 4 (Ala.1988). An incorrect, misleading, erroneous, or prejudicial charge may form the basis for granting a new trial. See, Nunn v. Whitworth, 545 So. 2d 766 (Ala.1989). However, the refusal of a requested, written instruction, although a correct statement of the law, is not cause for reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the trial court's oral charge. See, Rule 51, Ala. R. Civ. P. When examining a charge asserted to be *547 erroneous, this Court looks to the entirety of the charge to see if there is reversible error. See, Grayco Resources, Inc. v. Poole, 500 So. 2d 1030 (Ala.1986)."'
"Cackowski v. Wal-Mart Stores, Inc., 767 So. 2d 319, 327 (Ala.2000) (quoting Shoals Ford, Inc. v. Clardy, 588 So. 2d 879, 883 (Ala.1991)). Additionally, `[a]ny error or defect which does not affect the substantial rights of the parties may be disregarded.' Bishop v. State Auto. Mut. Ins. Co., 600 So. 2d 262, 265 (Ala. Civ.App.1991) (citing Rule 61, Ala. R. Civ. P.). As a result, the jury instruction must be erroneous as well as prejudicial, and this Court cannot presume prejudice. Brabner v. Canton, 611 So. 2d 1016, 1018 (Ala.1992); Preferred Risk Mut. Ins. Co. v. Ryan, 589 So. 2d 165, 167 (Ala.1991). The appellant has the burden of demonstrating that an erroneous jury instruction was prejudicial. See Ryan, 589 So.2d at 167 (citing Dinmark v. Farrier, 510 So. 2d 819 (Ala. 1987))."
12 So.3d at 43-44.
The trial court improperly instructed the jury as to the measure of damages to be considered under the breach-of-contract claim and also improperly instructed the jury that it could award damages for mental anguish. Because the jury was not given the proper instructions to use in awarding damages, on the only count properly before it, we must reverse the judgment entered on the jury's verdict and remand the case for a new trial on the Bradleys' breach-of-contract claim.
Conclusion
We conclude that the trial court erred in denying Stewart's and Morgan's motions for a judgment as a matter of law as to the negligent-construction, negligent-installation, and negligent-supervision claims. The trial court also erred in failing to grant the motions for a judgment as a matter of law as to the Bradleys' right to recover mental-anguish damages. Because this case represents a "good count-bad county" situation and because the trial court erred to reversal in its instructions to the jury, we reverse the trial court's judgment and remand this cause for a new trial only on the Bradleys' breach-of-contract claim.
2070574 REVERSED AND REMANDED WITH INSTRUCTIONS.
2070575 REVERSED AND REMANDED WITH INSTRUCTIONS.
THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, JJ., concur.
NOTES
[1] Stewart and Morgan did not dispute that the Bradleys' house had been improperly constructed.
[2] We construe the evidence in the light most favorable to the Bradleys, as we must when reviewing the denial of a motion for a judgment as a matter of law. See Leonard v. Cunningham, 4 So.3d at 1183-84. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625113/ | 328 Mich. 173 (1950)
43 N.W.2d 316
PAYNE
v.
DEARBORN NATIONAL CASUALTY COMPANY.
Docket No. 50, Calendar No. 44,753.
Supreme Court of Michigan.
Decided June 27, 1950.
Hathaway & Latimer, for plaintiff.
Alexis J. Rogoski, for defendant.
REID, J.
Plaintiff Payne sued on his policy issued to him by defendant by reason of plaintiff's liability to third parties because of a collision (while plaintiff was driving a DeSoto car) and for personal injuries to plaintiff, the policy having reference to plaintiff's Plymouth automobile, and plaintiff also counted on a policy issued by defendant to one Robert K. Wilson which had reference to Wilson's DeSoto automobile which plaintiff was in process of buying or had bought on April 17, 1948, for liability incurred by plaintiff in the same accident.
The trial judge allowed plaintiff under his own policy on the Plymouth car, $729.35 on account of medical expenses, and under the Wilson policy on the DeSoto car for amount in settlement with third party Hazebrook, $667.00, for his attorney fees in the Hazebrook suit, $755.00, and for legal expenses other than fees, $17.35, a total judgment of $2,168.70 plus cost and charges, from which judgment defendant appeals.
On July 15, 1947, plaintiff obtained from defendant a policy of insurance having reference to plaintiff's Plymouth automobile and on December 16, 1947, Robert K. Wilson received from defendant a policy respecting Wilson's DeSoto automobile.
*175 The provisions of the 2 policies were identical, except that the Wilson policy did not include medical coverage and also except as to policy limits. The 2 policies provided for many items of similar coverage, including public liability, property damage and defense of suits.
Plaintiff's policy on the Plymouth contained the following:
"V. USE OF OTHER AUTOMOBILES
"Such insurance as is afforded by this policy for bodily injury liability and for property damage liability with respect to the automobile classified as `pleasure and business' applies (1) to the named insured, if an individual and the owner of such automobile, or if husband and wife either or both of whom own such automobile, and (2) to the spouse of such individual if a resident of the same household, to the employer of such named insured or spouse and to the parent or guardian of such named insured or spouse, if a minor, as insured, with respect to the use of any other automobile by or in behalf of such named insured or spouse.
"This insuring agreement does not apply:
"(A) To any automobile owned in full or in part by, registered in the name of, hired as part of a frequent use of hired automobiles by, or furnished for regular use to, the named insured or a member of his household other than a private chauffeur or domestic servant of the named insured or spouse."
Said policy contained the following insuring agreement with regard to medical payments:
"1 Broad form to pay to or for each person who sustains bodily injury, caused by accident, while in or upon, entering or alighting from (1) the automobile if the injury arises out of the use thereof by or with the permission of the named insured, or (2) any other private passenger automobile with respect to the use of which insurance is afforded under insuring agreement V of this policy, if the injury *176 arises out of the use thereof and results from (A) the operation of said automobile by the named insured or spouse or by a private chauffeur or domestic servant of either or (B) the occupancy of said automobile by the named insured or spouse, the reasonable expense of necessary medical, surgical, ambulance, hospital and professional nursing services and, in the event of death resulting from such injury, the reasonable funeral expense, all incurred within 1 year from the date of accident."
Division III of the Wilson policy issued by defendant is as follows:
"The unqualified word `insured' wherever used in coverages A and B and in other parts of this policy, when applicable to such coverages, includes the named insured and, except where specifically stated to the contrary, also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is with the permission of the named insured. The insurance with respect to any person or organization other than the named insured does not apply:
"(A) To injury to or death of any person who is a named insured;
"(B) To any person or organization, or to any agent or employee thereof, operating an automobile repair shop, public garage, sales agency, service station or public parking place, with respect to any accident arising out of the operation thereof;
"(C) To any employee with respect to injury to or death of another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of the automobile in the business of such employer."
Division X of the said Wilson policy is as follows:
"This policy applies only to accidents which occur and to direct and accidental losses to the automobile which are sustained during the policy period, *177 while the automobile is within the United States of America, its territories or possessions, Canada or Newfoundland, or is being transported between ports thereof, and is owned, maintained and used for the purposes stated as applicable thereto in the declarations."
Wilson's policy was not assigned to plaintiff. In the case of Byrd v. American Guarantee and Liability Ins. Co. (CCA), 180 F2d 246, we note on page 249 the following:
"The policy likewise embraces in section III the definition of an insured: `The unqualified word "insured" wherever used in coverages A and B and in other parts of this policy when applicable to such coverages, includes the named insured and, except where specifically stated to the contrary, also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is with the permission of the named insured.'
"We therefore hold that the protection of the policy of insurance is entirely governed by ownership in the named insured of the automobile described in the policy. There is no insurance separate and distinct from the ownership of the car. The named insured was insured only as owner of the car mentioned, and the coverage of those using it with his permission was likewise restricted to the period of his ownership."
While the language of the policy in the Byrd Case differs from the language in the Wilson policy in the instant case, still we think the quoted language of pertinent value in determining the issues in this case.
Wilson was arrested and was in jail at White Cloud. His DeSoto car was left with plaintiff for safekeeping. Before April 17, 1948, plaintiff and Mrs. Wilson visited Wilson at the jail. Plaintiff *178 heard Wilson tell Mrs. Wilson she could probably get $200 for his car. The car was subject to a lien for approximately $700 payable to a finance company.
Plaintiff Payne testified:
"I told her [Mrs. Wilson] that if she would take it [the DeSoto] down to the dealer and find out what she could get for the equity, I would consider paying that amount for the car."
Payne went to the office of Wilson's attorneys before April 17th to see about the car or the financing of it and went to the office of the financing company but found that if he (plaintiff) took over the payments on the car, an additional fee would be required. Payne further testified that before April 17, 1948, he decided to buy the DeSoto. Payne made out a check in the amount of $200 payable to the order of Robert K. Wilson. There is typed on the bottom of the check, "Part payment of fordor DeSoto." Payne testified that no price for the car was set by conversation between himself and Wilson.
On April 17th, with the check for $200 and the certificate of title to the DeSoto in Mrs. Payne's hands, plaintiff and Mrs. Payne drove to White Cloud. After waiting for some time at the jail to see Wilson, plaintiff went away from the jail to get a notary to take an acknowledgment and in his absence plaintiff's wife had an interview with Wilson through an opening in a door inside the county jail. Mrs. Payne handed Wilson through the opening, the check for $200 and the certificate of title to Wilson's car with form of assignment with plaintiff's name as the assignee. Wilson indorsed the check, signed the assignment of the certificate of title, handed the check and assignment back to Mrs. Payne, raised his hand and swore to the assignment. Mrs. Payne was a notary of Muskegon county, but *179 doubted whether she could act in Newaygo county, and did not certify to the jurat to the assignment, and without being instructed to return the assignment to Hathaway & Latimer, attorneys for Wilson in Wilson's criminal case, inclosed both the indorse ! check and certificate of title in an envelope addressed to Hathaway & Latimer. Hathaway had instructed plaintiff to send him the check but did not give such instruction as to the assignment of the certificate of title. The envelope had been furnished by Wilson's attorneys for the mailing to the attorneys of the check, it being understood the check must be in the attorneys' hands before April 21st, the date set for Wilson's trial. The check was indorsed, "Pay to the order of Hathaway & Latimer, attorneys." Mrs. Payne's act in mailing the indorsed certificate of title to Hathaway could be regarded as an oversight on her part.
Prior to April 17th, Wilson's DeSoto was stored in plaintiff's garage for safekeeping but plaintiff did not drive it before April 17th. On April 18th, plaintiff Payne drove Mrs. Wilson and Mrs. Payne to Whitehall in the DeSoto, thereby using the DeSoto for Payne's own purposes.
Plaintiff testified,
"I never asked Wilson to return the $200. I intended that he was to keep it. I understood that was to pay for his automobile or some interest in it. He said that was all right."
Plaintiff also testified,
"I handed it [the check] to Mr. Wilson and asked him if that was all right. He said it was OK I guess. I don't remember what he said."
Wilson testified,
"I wrote the signature on there [the assignment of title] for transfer of title."
*180 The parties to this case differ in the construction to be given the following testimony by Wilson:
"I authorized you [Mr. Hathaway] as my attorney to deliver the title certificate to Charles Payne. That was our understanding, any matter I had you were to take care of. I told you that you had authority to give the certificate to Mr. Payne before the finance company was paid. That was on the first day of the trial. My trial was on April 21, 1948. I gave you that authority conditionally on Mr. Payne paying off the $700 to the finance company. I am debating what was said. Charlie knew the balance of the car had to be paid off and he knew somebody had to pay it other than myself or my wife. If he took the car, it would be his responsibility to pay the finance company. I never authorized you to give the title up before the finance company was paid off. We never talked about that."
The testimony of a witness should be so construed as to leave it consistent rather than self-contradictory, unless some of the witness' statements are required to be disregarded by so doing, but having due regard however to other testimony in the case. Accordingly, the quoted paragraph of Wilson's testimony can be construed to mean substantially, "I authorized Hathaway to deliver the title certificate to Charles Payne, but I never expressly stated that Hathaway could so deliver before Payne paid the finance company, on which subject nothing was said. Payne knew that somebody had to pay the finance company other than my wife and myself."
If that is a correct construction of Wilson's testimony, there is nothing in Wilson's testimony to show there was any reservation concerning sale to Payne.
The assignment recited that the DeSoto was subject to a lien in favor of Fidelity Corporation of *181 Michigan, but does not recite that the assignee assumes payment thereof.
Plaintiff testified,
"I knew my wife was going to turn it [the check] over to him to indorse it to his attorneys."
It could be concluded that when Wilson at the Newaygo county jail delivered the certificate of title over to plaintiff's wife indorsed to plaintiff, that was a delivery to plaintiff of title to the DeSoto car.
The trial court's finding that Mrs. Payne was not her husband's agent is against the clear weight of evidence.
The conclusion of the trial court, "As a matter of law that title did not pass to the plaintiff," we find erroneous.
In any event, it is clear from plaintiff's own testimony that plaintiff had purchased either the title to Wilson's DeSoto or at least an interest in such title.
Plaintiff did not avail himself of the provision of his policy respecting newly-acquired automobiles nor did he pay any additional fee therefor.
Plaintiff says he did not use the DeSoto car before April 17th, but he did use the DeSoto for his own purposes after that date, at least, in driving to Whitehall on April 18th. He drove the DeSoto car to a meeting in Lansing and on the return from that meeting, on April 20 or 21, 1948 (the date of the collision is in confusion in the record), while driving the DeSoto, he became involved at the intersection of M-16 and M-50 in a collision with 2 other automobiles, in which plaintiff suffered personal injuries, the DeSoto was demolished, and plaintiff incurred liability to the owners of the 2 other cars for damages.
The court found there was no transfer in whole or in part of title to the DeSoto car before the collision. This finding is against the clear weight *182 of evidence and is therefore reversed. There is sufficient showing in the testimony of plaintiff himself as well as the testimony of Wilson to show that plaintiff was the owner of the DeSoto car at the time of the accident.
The failure of the notary to affix her signature to the acknowledgment and failure to forward the transferred certificate of title to the secretary of State does not preclude us from treating plaintiff as the owner within the meaning of the policies of insurance. See Fleckenstein v. Citizens' Mutual Automobile Ins. Co., 326 Mich. 591, 600, and Wood v. Merchants Ins. Co., 291 Mich. 573, 577.
If plaintiff was the owner of the DeSoto car at the time of the collision, he was not covered by the policy issued to him under the use of other automobiles clause of his policy.
Plaintiff is not entitled to recover under the policy issued to Wilson, if at the time of the collision plaintiff was driving the DeSoto car in his capacity as owner. The finding that plaintiff was not driving the DeSoto car in his capacity as owner is against the clear preponderance of evidence.
The judgment appealed from is reversed. A new trial is ordered. Costs to defendant.
BOYLES, C.J., and NORTH, DETHMERS, BUTZEL, CARR, BUSHNELL, and SHARPE, JJ., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/89720/ | 96 U.S. 395 (1877)
DOBBINS'S DISTILLERY
v.
UNITED STATES.
Supreme Court of United States.
*396 Mr. Robert G. Ingersoll and Mr. A.L. Merriman for the plaintiff in error, cited Wharton, Crim. Law, 325.
Mr. Assistant-Attorney-General Smith, contra.
MR. JUSTICE CLIFFORD delivered the opinion of the court.
Judicial proceedings in rem, to enforce a forfeiture, cannot in general be properly instituted until the property inculpated is previously seized by the executive authority, as it is the preliminary seizure of the property that brings the same within the reach of such legal process. The Schooner Anne, 9 Cranch, 289.
Due executive seizure was made in this case of the distillery and of the real and personal property used in connection with the same; and the information in due form was subsequently filed praying for process, and that the property seized should be condemned by the definitive sentence of the court. Pursuant to the prayer of the information, the record shows that process of monition was issued in due form, and that it was duly served by the marshal. Sixteen causes of forfeiture were alleged in the information, all of which, except the first three, were abandoned at the trial.
Sufficient appears to show that the claimant was the owner of the distillery and all the other property seized, and that he, prior to the alleged causes of seizure and forfeiture, leased the property to the party in possession of the same at the time the alleged acts of forfeiture were perpetrated by the lessee and occupant. Three of the alleged causes of forfeiture only need be noticed, and they are in substance and effect as follows:
1. That the lessee, occupant, and operator of the distillery neglected and refused to keep the books required by law, and make the required entries in the same; that he made false entries in the books kept in the distillery, and that he omitted to enter in the same the facts required by law, with intent to defraud the revenue, and to conceal from the revenue officers facts and particulars required to be stated and entered in such books, with like intent to defraud the revenue; and that he refused to produce the books kept in the distillery when thereto requested by the revenue officers, contrary to the statute in such case made and provided. 15 Stat. 132.
*397 2. That the distillery, the distilled spirits, and distilling apparatus seized were owned by the lessee, occupant, and operator, and some other person unknown, and were intended to be used by the owners in the business of a distiller, in a manner to defraud the United States, contrary to the act of Congress. Id. 142.
3. That the property seized was used by its owners to defraud the United States of the tax to which the spirits distilled were by law subject, and that the United States had been thereby defrauded of a part of such tax, in violation of law. Id. 59.
Service was made; and the owner and lessor of the distillery and other property seized appeared, and was permitted by leave of court to make defence. His defence consists of an averment that he has no knowledge or information upon the subject of the information, and of a denial of each and every one of the charges made against the property seized. Issue being joined, the parties went to trial, and the verdict and decree of condemnation were in favor of the plaintiffs. Exceptions were duly filed by the claimant; and he sued out a writ of error, and removed the cause into this court.
Matters set forth in the bill of exceptions which are not assigned for error will not be re-examined.
Four errors are assigned, in substance and effect as follows: 1. That the court erred in admitting in evidence the statements of the lessee of the property, as contained in the first paragraph of the bill of exceptions. 2. That the court erred in admitting the evidence set forth in that part of the bill of exceptions denominated paragraphs 2 and 3. 3. That the court erred in charging the jury that it was unnecessary for them to find that the claimant was implicated in the frauds of the lessee and operator of the distillery, or that he had any knowledge of his fraudulent acts or omissions. That if the jury find that the claimant leased the property to the occupant and operator for the purposes of a distillery, and that the lessee committed the alleged frauds, the government is entitled to a verdict, even though the jury should be of opinion that the claimant was ignorant of the lessee's fraudulent acts and omissions. 4. That the court erred in including the real estate in the decree of condemnation or forfeiture.
*398 Instructions not included in the assignment of errors were given by the court to the jury, which deserve to be briefly noticed before proceeding to examine the rulings and instruction of the court, which, it is insisted, present a sufficient cause to reverse the judgment.
Requests for instructions having been presented by the claimant, and the same having been refused, the court, of its own motion, instructed the jury to the effect, that if the evidence satisfied the jury that the lessee and occupant of the distillery made sales of spirits produced by him which he omitted or neglected to enter in his books, with intent to defraud the government, or with intent to conceal from the officers the fact of such sales, then he would be guilty, and it would be their duty to find for the plaintiffs under the first article of the information; that the mere absence of that party from the State or the country was not of itself evidence upon which they could base a verdict, but if they found that he absconded and fled from justice when detected and charged with the frauds alleged against him in the case, that that fact might be considered by the jury, with other evidence, as tending to prove his fraudulent intents and guilt; that the information is a proceeding to condemn and forfeit to the United States certain property, both real and personal, for alleged offences against the revenue law; that the property in question consists of a distillery, with its fixtures and apparatus, and the ground within the enclosure on which the distillery stands, together with the various articles of personal property enumerated in the information, and that the present defendant is the claimant of the property contesting the grounds of forfeiture assigned by the government; that the gist of the proceeding consists in the alleged fraudulent acts and omissions of the lessee and occupant of the distillery, or his agent and employés; and whether the charges against him be positive acts done by him, or omissions to do what the law requires of him, as a distiller, fraud is a necessary element in the case, without which there can be no forfeiture.
Evidence of the statements and declarations of the lessee and occupant of the distillery, voluntarily made while under arrest and afterwards, were offered by the district attorney, as tending to show his fraudulent intent in the doing and omitting to do *399 certain acts assigned in the information as causes of forfeiture; and the ruling of the court in admitting the same, subject to objection by the claimant, constitutes the first assignment of error.
Throughout the trial the claimant appears to have assumed, as the theory of the defence to the information, that he was the accused party, and that he was on trial for a criminal offence created and defined by an act of Congress. Instead of that, the forfeiture claimed in the information is aimed against the distillery, and the real and personal property used in connection with the same, including the real estate used to facilitate the operation of distilling, and which is conducive to that end as the means of ingress or egress, and all personal property of the kind found there, together with the distilled spirits and stills wherever found.
Nor is it necessary that the owner of the property should have knowledge that the lessee and distiller was committing fraud on the public revenue, in order that the information of forfeiture should be maintained. If he knowingly suffers and permits his land to be used as a site for a distillery, the law places him on the same footing as if he were the distiller and the owner of the lot where the distillery is located; and, if fraud is shown in such a case, the land is forfeited, just as if the distiller were the owner. Burroughs, Taxation, 67.
Cases arise, undoubtedly, where the judgment of forfeiture necessarily carries with it, and as part of the sentence, a conviction and judgment against the person for the crime committed; and in that state of the pleadings it is clear that the proceeding is one of a criminal character: but where the information, as in this case, does not involve the personal conviction of the wrong-doer for the offence charged, the remedy of forfeiture claimed is plainly one of a civil nature; as the conviction of the wrong-doer must be obtained, if at all, in another and wholly independent proceeding. 1 Bish. Crim. Law (6th ed.), sect. 835, note 1; United States v. Three Tons of Coal, 6 Biss. 371.
Forfeitures, in many cases of felony, did not attach at common law where the proceeding was in rem until the offender was convicted, as the crown, Judge Story says, had no right to *400 the goods and chattels of the felon, without producing the record of his conviction; but that rule, as the same learned magistrate says, was never applied to seizures and forfeitures created by statute in rem, cognizable on the revenue side of the exchequer court, for the reason that the thing in such a case is primarily considered as the offender, or rather that the offence is attached primarily to the thing, whether the offence be malum prohibitum or malum in se; and he adds, that the same principles apply to proceedings in rem in the admiralty. The Palmyra, 12 Wheat. 1.
Corresponding views were expressed by the same learned judge in a case decided at a much later period, in which he remarked that the act of Congress in question made no exception whatsoever, whether the alleged aggression was with or without the co-operation of the owners. Nor, said the judge in that case, is there any thing new in a provision of that sort. It is not an uncommon course in the admiralty, acting under the law of nations, to treat the vessel in which or by which, or by the master or crew thereof, a wrong or offence has been committed, as the offender, without any regard whatsoever to the personal misconduct or responsibility of the owner thereof, the necessity of the case requiring it as the only adequate means of suppressing the offence or wrong, or of insuring an indemnity to the injured party. United States v. Brig Malek Adhel, 2 How. 210.
Beyond all doubt, the act of Congress in question attaches the offence to the distillery, and the real and personal property connected with the same, the words of the act defining the offence being, that if any such false entry shall be made in said books, or any entry shall be omitted therefrom, with intent to defraud or to conceal from the revenue officers any fact or particular required to be stated and entered in either of said books, or to mislead the revenue officers with reference thereto; or if any distiller shall omit or refuse to produce either of said books, or shall cancel, obliterate, or destroy any part of either of said books, or any entry therein, with intent to defraud, or shall permit the same to be done, or such books or either of them be not produced when required by any revenue officer, the distillery, distilling apparatus, and the lot or tract of land *401 on which it stands, and all personal property used in the business, shall be forfeited to the United States. 15 Stat. 133.
Nothing can be plainer in legal decision than the proposition that the offence therein defined is attached primarily to the distillery, and the real and personal property used in connection with the same, without any regard whatsoever to the personal misconduct or responsibility of the owner, beyond what necessarily arises from the fact that he leased the property to the distiller, and suffered it to be occupied and used by the lessee as a distillery.
Cases often arise where the property of the owner is forfeited on account of the fraud, neglect, or misconduct of those intrusted with its possession, care, and custody, even when the owner is otherwise without fault; and Judge Story remarked, in the case last cited, that the doctrine is familiarly applied to cases of smuggling and other misconduct under the revenue laws, as well as to other cases arising under the embargo and non-intercourse acts of Congress.
Controversies of the kind have arisen in our judicial history; and it has always been held in such cases that the acts of the master and crew bind the interest of the owner of the ship, whether he be innocent or guilty, and that in sending the ship to sea under their charge he impliedly submits to whatever the law denounces as a forfeiture attached to the ship by means of their unlawful or wanton misconduct.
Analogous views were expressed by Marshall, C.J., at a much earlier period. United States v. The Little Charles, 1 Brock. 347. Objection was there taken to the admissibility of the report and manifest made by the master of the schooner when she arrived at her port of destination, the schooner having been subsequently seized for an alleged violation of the embargo laws. Two grounds were assigned in support of the objection: 1. That the paper offered was not accompanied by the entry. 2. That the declaration of the master, if admitted in evidence, would affect the owner in a criminal case. Both were overruled. Reference will only be made to the reasons given for the second ruling.
Neither confessions nor admissions of the master, it was contended, were admissible to prove the guilt of the owner; and *402 the Chief Justice added, that, if the case was such as was supposed in argument, the objection would be entitled to great weight. But he remarked, that the proceeding was one against the vessel, for an offence committed by the vessel, which is not less an offence, and does not the less subject her to forfeiture because it was committed without the authority and against the will of the owner. It is held, said the Chief Justice, that inanimate matter can commit no offence. But the ship, as a body, is animated and put in action by the crew, who are guided by the master. The vessel acts and speaks by the master; she reports herself by the master. It is, therefore, not unreasonable that the vessel should be affected by this report.
Apply that rule to the case before the court, and it follows that the distillery, and the real and personal property used in connection with the same, must be considered as affected by the unlawful doings and omissions of the lessee and occupant of the property as a distillery, subject to the rules and regulations prescribed by Congress. United States v. Distillery, 2 Abb. (U.S.) 192.
Suppose that is so, still it is insisted by the claimant that the declaration of the lessee and occupant of the distillery made subsequent to his arrest were not competent evidence in the case; but the court is entirely of a different opinion, as the arrest of the lessee did not to any extent affect or change his relations to the property or to his lessor. If his lease was a subsisting one at the time of his arrest, his relations to the property and the owner of the same continued unaffected by that occurrence, nor is there any thing in the authority cited by the claimant which, when properly understood, asserts any different doctrine.
Statements made by the master of a ship as to what occurred during the voyage, tending to inculpate the owner in the guilty enterprise of the ship, are not admissible in evidence against the owner, where he is charged with a crime, if the statements were made subsequent to the time when he ceased to be master and the common enterprise had come to an end; but the rule has no application here, as the arrest of the lessee did not abrogate the lease, and, if the prosecution had failed, he might have *403 continued to operate the distillery in spite of the accusation contained in the information.
2. Certain private books, letters, and memoranda, found in an open box in a room occupied by the lessee and operator of the distillery as a private office, were also offered in evidence, to the admissibility of which the claimant objected; but, inasmuch as it appears that they were the books, letters, and papers of the person in whose office they were found, and that they related in part to the business of the distillery, it requires no argument to show that the objection of the claimant was without merit.
Other letters and bills of lading, found by the marshal in an open box in the room occupied by the same party as a private office, were also introduced in evidence, subject to the claimant's objection, which, it appears, were addressed to the operator of the distillery, and that they tended to prove the shipment by the distiller to the firm from which they came of large quantities of high-wines, and that the firm rendered accounts to the shipper of the sales as commission merchants.
Found as the papers were in the office of the distiller, it is too clear for argument that they were properly admitted, unless it be assumed that it was the claimant, and not the distillery and the property connected with the same, who was on trial.
3. Much discussion of the remaining error assigned will not be required, as it presents the same question in principle as that involved in the first assignment of error, which has already been sufficiently considered.
None of the material facts are in dispute, nor were they to any considerable extent at the trial. Beyond controversy, the title of the premises and property was in the claimant; and it is equally certain that he leased the same to the lessee for the purposes of a distillery, and with the knowledge that the lessee intended to use the premises to carry on that business, and that he did use the same for that purpose.
Fraud is not imputed to the owner of the premises; but the evidence and the verdict of the jury warrant the conclusion that the frauds charged in the information were satisfactorily proved, from which it follows that the decree of condemnation *404 is correct, if it be true, as heretofore explained, that it was the property and not the claimant that was put to trial under the pleadings; and we are also of the opinion that the theory adopted by the court below, that, if the lessee of the premises and the operator of the distillery committed the alleged frauds, the government was entitled to a verdict, even though the jury were of the opinion that the claimant was ignorant of the fraudulent acts or omissions of the distiller.
Viewed in that light, the legal conclusion must be that the unlawful acts of the distiller bind the owner of the property, in respect to the management of the same, as much as if they were committed by the owner himself. Power to that effect the law vests in him by virtue of his lease; and, if he abuses his trust, it is a matter to be settled between him and his lessor; but the acts of violation as to the penal consequences to the property are to be considered just the same as if they were the acts of the owner. The Vrouw Judith, 1 C. Rob. 150; United States v. The Distillery at Spring Valley, 11 Blatchf. 255; Same v. The Reindeer, 2 Cliff. 57; Same v. Nineteen Hundred and Sixty Bags of Coffee, 8 Cranch, 398; Mitchell v. Torup, Parker, 227.
Examined in the light of these suggestions, as the case should be, it is clear that there is no error in the record.
Judgment affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1555368/ | 36 So.3d 680 (2010)
ORREGO
v.
STATE.
No. 3D08-1355.
District Court of Appeal of Florida, Third District.
May 5, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1555393/ | 775 F.Supp. 1417 (1991)
UNITED STATES of America, Plaintiff,
v.
SINTON DAIRY FOODS COMPANY, INC., Defendant.
Civ. A. No. 90-B-1894.
United States District Court, D. Colorado.
October 18, 1991.
*1418 Karen Lynne Baker, Trial Atty., Tax Div., U.S. Dept. of Justice, Washington, D.C., William G. Pharo, Asst. U.S. Atty., Denver, Colo., for plaintiff.
Robert E. Benson, Lynn Bolinske, Holland & Hart, Denver, Colo., Wayne H. Hoecker, James C. Thomas, III, Gage & Tucker, Kansas City, Mo., Raymond A. Graham, Robinson, Waters, O'Dorisio & Rapson, P.C., Denver, Colo., for defendant.
MEMORANDUM OPINION AND ORDER
BABCOCK, District Judge.
Plaintiff United States of America (the government) brings this action to recover $592,838 in tax refunds. The refund checks were payable to Sinton Food Companies, Inc. (Old Sinton), but were cashed by defendant Sinton Dairy Foods Company, Inc. (New Sinton). A hearing on the parties' cross motions for summary judgment was held September 20, 1991. For the reasons stated below, the government's motion is granted and New Sinton's motion is denied.
I.
Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
II.
The facts, with all disputes resolved in New Sinton's favor, are as follows. On May 15, 1987, New Sinton acquired by assignment all of Old Sinton's assets except for some stock that is not relevant to this case. The potential tax refunds involved here were included in this assignment. New Sinton thereafter changed its name to Sintcorp.
On July 28, 1988, New Sinton/Sintcorp filed three Forms 1139 (Corporate Application for Tentative Refund) with the Internal Revenue Service (IRS) for the taxable years ending October 31, 1981, 1982, 1984, and 1985, in the amounts of $98,436, $130,831, $199,511, and $164,060, respectively. Virtually all of these refund claims were generated by a carryback of the net operating losses of Old Sinton, which accrued prior to May 15, 1987. The taxpayer identified on the Forms 1139 was "Sinton Food Companies, Inc." (Old Sinton). Each form was signed by Charles K. New, Sintcorp's president.
In October 1988, the IRS issued refund checks for $98,436, $130,831, $199,511, and $164,060, payable to Old Sinton. On November 7, 1988, New Sinton/Sintcorp endorsed these four checks, presented them for payment, and was credited with the full amount of the checks.
III.
The Anti-Assignment Act (the Act), 31 U.S.C. § 3727(b), provides that an assignment of a claim, or of an interest in any claim, against the United States Government "may be made only after a claim is allowed, the amount of the claim is decided, and a warrant for payment of the claim has been issued...."
The Act has a number of purposes, including "to prevent possible multiple payment of claims, to make unnecessary the investigation of alleged assignments, and to enable the Government to deal only with the original claimant." United States v. Aetna Casualty & Sur. Co., 338 U.S. 366, 373, 70 S.Ct. 207, 211, 94 L.Ed. 171 (1949) *1419 (emphasis added). "In the absence of such a rule, the Government would be in danger of becoming embroiled in conflicting claims, with delay and embarrassment and the chance of multiple liability." Martin v. National Sur. Co., 300 U.S. 588, 594, 57 S.Ct. 531, 534, 81 L.Ed. 822 (1937).
New Sinton concedes that the assignment of the potential refunds does not comply with the Act. Because the assignment does not comply with the Act, it is voidable at the government's discretion. Tuftco Corp. v. United States, 614 F.2d 740, 745, 222 Ct.Cl. 277 (1980). Here, the government exercised its discretion to void the assignment. Accordingly, the assignment of the potential tax refunds is not valid as against the United States. See In re R & L Refunds, Inc., 96 B.R. 105 (Bankr. W.D.Ken.1988) (invalidating assignment of anticipated tax refunds).
Stripped of the assignment, the case is uncomplicated. The government sent the refund checks payable to Old Sinton. The government retained a property interest in the checks until they were cashed by Old Sinton. United States v. Wyatt, 737 F.2d 1499 (9th Cir.1984); United States v. Forcellati, 610 F.2d 25 (1st Cir.1979), cert. denied, 445 U.S. 944, 100 S.Ct. 1342, 63 L.Ed.2d 778 (1980). When New Sinton converted these checks to its own account, it improperly interfered with this property interest. Accordingly, the government is entitled to recover the amount of the refunds under either 26 U.S.C. § 7405, see United States v. Michaels, 840 F.2d 901 (11th Cir. 1988), or common law. American Nat'l Bank and Trust Co. v. United States, 23 Cl.Ct. 542, 547 (1991); United States v. Michaelson, 58 F.Supp. 796, 802 (D.Minn. 1945).
New Sinton argues, however, that the Act does not apply, contending that the government has no potential liability to Old Sinton in connection with the refunds. The government asserts that under the circumstances here there exists the possibility of a multiple recovery against it.
Because Old Sinton is not a party to this suit, I cannot decide this issue. See St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1174 (10th Cir.1979) (issue preclusion does not apply unless prior suit involved same parties or their privies); cf. Fed.R.Civ.P. 19(a). However, as demonstrated by the government's briefs, Old Sinton could press a nonfrivolous claim that the government still owes it the refunds. This is a possible claim that the Act allows the government to avoid.
Citing Martin v. National Surety Co., 300 U.S. 588, 57 S.Ct. 531, 81 L.Ed. 822 (1937), New Sinton next argues that government may not assert the Act because the ownership of the refunds is solely a dispute between private parties. I disagree.
First, Martin was a dispute between private parties. This case, however, directly involves the government as a party plaintiff. Moreover, as stated in Martin, "[a] transfer of a fund after payment is perfected is of no concern to any one except the parties to the transaction." Id. at 595, 57 S.Ct. at 534. Here, payment was never perfected because New Sinton, not Old Sinton, endorsed the checks. Accordingly, as discussed above, the government is "in danger of becoming embroiled in conflicting claims," Id. at 594, 57 S.Ct. at 534, and the Act's protections apply.
New Sinton's reliance on McKnight v. United States, 98 U.S. 179, 25 L.Ed. 115 (1879) is without merit. In that case, the government owed money to a government contractor. The government paid the money to the contractor's assignees. Although the assignees had a valid claim against the contractor, the assignment was contrary to an early version of the Anti-Assignment Act and, therefore, "void." Id. at 186-87 (citing Spofford v. Kirk 97 U.S. 484, 24 L.Ed. 1032 (1878)). However, the court held that because the government knew that it was paying the money to assignees, and because there was no concealment by the assignees, the government could not recover the money. Id.
This case is distinguishable in that the government did not pay the assignee, but the assignor. Because the government in McKnight knew all the relevant facts and *1420 still chose to pay the assignees, it had an adequate opportunity to protect its interests. Here, the government did not issue checks to the assignee, New Sinton. Consequently, the government's opportunity to protect its interests first arises in this action. McKnight is not controlling. Cf. American Nat'l Bank, 23 Cl.Ct. at 547-48.
New Sinton's argument that once the government pays out money, it may not sue to recover is also without merit. American Nat'l Bank, 23 Cl.Ct. 542 (allowing government to recover money paid out to assignee).
Accordingly, I conclude that the government may reclaim the refund money paid to Old Sinton but received by New Sinton. The government seeks to apply part of the award in this case to an alleged tax deficiency owed by Old Sinton's parent corporation. This relief is not requested in the government's amended complaint. The government's ability to apply the award to the alleged deficiency is, therefore, not a proper issue in this case, and I will not address it.
Finally, New Sinton moves for a continuance under Rule 56(f), arguing that it needs discovery on an issue raised by the government. Because that issue was not material to my resolution of the cross motions for summary judgment, the motion is denied.
Accordingly, it is ORDERED that:
(1) the government's motion for summary judgment is GRANTED;
(2) New Sinton's motion for summary judgment is DENIED;
(3) New Sinton's motion to strike, or in the alternative, motion for continuance is DENIED;
(4) final judgment shall enter for the government and against New Sinton for $592,838.00 plus pre- and post-judgment interest at the legal rate, the parties to bear their own costs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625155/ | 15 So. 3d 770 (2009)
Anthony DAVIS, Appellant,
v.
STATE of Florida, Appellee.
No. 2D08-4424.
District Court of Appeal of Florida, Second District.
July 17, 2009.
*771 CASANUEVA, Judge.
Anthony Davis challenges the postconviction court's final order summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse as to claims one and six and remand for further proceedings. We affirm the denial of the remaining claims without further discussion.
Davis entered a negotiated plea in which he pleaded guilty to one count of possession of cannabis in excess of twenty grams and admitted to violating his probation previously imposed for a 1998 charge of robbery with a weapon. In exchange, Davis received a sixty-month sentence for the drug charge and a concurrent sixty-three-month sentence for the violation of probation. The State nolle prossed charges of possession of cannabis with intent to sell and possession of paraphernalia. Davis did not file a direct appeal.
In his rule 3.850 motion, Davis alleged in claim one that counsel "badgered" him into accepting the plea agreement by erroneously informing him that the maximum penalty he could, and probably would, receive on the offense underlying the violation of probation was thirty years when the actual maximum was 364 days, given that he had originally received a youthful offender sentence.[1] Davis alleged that had he been apprised of the correct maximum penalty, he would have instead rejected the plea and proceeded to trial.[2] In its response, the State acknowledged the sentencing law but argued that the claim was facially insufficient because Davis failed to allege that he had, in fact, successfully completed youthful offender boot camp so that the 364-day maximum would apply to him. The State also pointed out that, although the record contained a Department of Corrections letter recommending Davis for boot camp, with the "Approve" box checked by the judge, the record was devoid of progress reports and a "resentenc[ing] to probation" following boot camp. As a result, the postconviction court dismissed claim one without prejudice *772 to the filing of a facially sufficient motion.
Davis filed a second motion repeating what he had already averred and added that he had "attended and successfully completed the Boot Camp Program, so the maximum penalty the court could impose... was ... 364 days." The court found that the second motion was "simply a reassertion" of the claim alleged in the original motion and once again dismissed the claim with leave to file a facially sufficient motion. Davis filed a third motion in which he repeated the averments of claim one found in the second motion without further amendment. In its final order, the postconviction court wrote as follows:
The Defendant's claim is, again, a reassertion of [the] claim[] [asserted in his two previous motions]. The Court files in the instant cases remain devoid of any evidence that the Defendant successfully completed "boot camp." The Defendant has provided the Court no evidence he successfully completed the program. Accordingly, the Defendant's [claim one] is DENIED with prejudice.
Davis's claim is essentially one of involuntary plea due to counsel's having allegedly misinformed him of the possible penalties he would have faced following an unsuccessful trial. In this context, he was required to allege (1) counsel's deficient performance and (2) that but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. See Brazeail v. State, 821 So. 2d 364, 367-68 (Fla. 1st DCA 2002) (quoting Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)). He alleged both of these elements in his motions. The postconviction court added a foundation requirement appropriate to Davis's particular claimthat Davis had successfully completed youthful offender boot camp. Following the court's instructions, he alleged this in his second motion.
We conclude that Davis's claim one, as amended in his second motion, is facially sufficient. He was required only to set forth "a cognizable claim for relief based upon the legal and factual grounds asserted." Jacobs v. State, 880 So. 2d 548, 550 (Fla.2004). He was not required to provide the court with documentary evidence that he had successfully completed boot camp. Cf., e.g., Keen v. State, 855 So. 2d 117, 118 (Fla. 2d DCA 2003) (noting that the movant was not required to provide a notarized statement supporting his allegations; "he must only provide a brief statement of facts in support of the motion"); Simon v. State, 997 So. 2d 490, 492 (Fla. 4th DCA 2008) (commenting that the State's argument that the court should affirm because the appellant failed to provide a plea transcript or a copy of the plea agreement "turns [rule 3.850(d)] on its head and is without merit"); see also Fla. R.Crim. P. 3.850(c) (listing the required contents of a postconviction motion). Once Davis set forth a legally sufficient claim, the postconviction court was required to either attach those portions of the record that refute the claim if such documentation exists or hold an evidentiary hearing. See Fla. R.Crim. P. 3.850(d); Jacobs, 880 So.2d at 550-51.[3] We therefore reverse as to claim one and remand for the trial court to either attach record documents that conclusively refute this claim or hold an evidentiary *773 hearing. See Jacobs, 880 So.2d at 550-51.
In claim six, Davis alleged that counsel was ineffective for failing to investigate the defense that the cannabis did not belong to him and that absent such neglect there is a reasonable probability that he would have gone to trial. Within claim six, Davis referred to the averments of claim three for additional details. In claim three, Davis alleged, in pertinent part,
[He had] told counsel that the cannabis was not his and that it belonged to his caretaker.
Furthermore, Defendant's caretaker admitted to Counsel that the cannabis belonged to her and expressed her willingness to testify to that fact. Counsel also knew that all evidentiary materials tending to establish guilt were found in the Defendant's caretaker's bedroom and not his.
The postconviction court initially found the claim facially sufficient and ordered a response from the State. The court agreed with the State's analysis that the claim was conclusory and gave Davis leave to file a facially sufficient claim. Davis essentially repeated the claim without substantive expansion; as a result, the court summarily denied it.
The postconviction court was correct in its initial conclusion that the claim was facially sufficient. In a recent case we summarized the relevant law as follows:
"A trial attorney's failure to investigate a factual defense or a defense relying on the suppression of evidence, which results in the entry of an ill-advised plea of guilty, has long been held to constitute a facially sufficient attack upon the conviction." Williams v. State, 717 So. 2d 1066, 1066 (Fla. 2d DCA 1998). To state such a claim, a defendant must allege that counsel was ineffective for failing to advise the defendant of or failing to investigate a possible defense and must allege that there is "a reasonable probability that, but for counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial." Grosvenor v. State, 874 So. 2d 1176, 1181 (Fla.2004); see also Flowers v. State, 793 So. 2d 36, 36 (Fla. 2d DCA 2001); Robinson v. State, 972 So. 2d 1115, 1116 (Fla. 5th DCA 2008). This type of claim is not waived by the entry of a guilty plea. See Flowers, 793 So.2d at 36; Jenrette v. State, 761 So. 2d 414, 415 (Fla. 2d DCA 2000); Williams, 717 So.2d at 1066.
Whatley v. State, 7 So. 3d 1126 (Fla. 2d DCA 2009). In determining that reasonable probability,
a court should consider the totality of the circumstances surrounding the plea, including such factors as whether a particular defense was likely to succeed at trial, the colloquy between the defendant and the trial court at the time of the plea, and the difference between the sentence imposed under the plea and the maximum possible sentence the defendant faced at a trial.
Grosvenor v. State, 874 So. 2d 1176, 1181-82 (Fla.2004).
Here, Davis alleged both deficient performance and that there was a reasonable probability that, absent that performance, he would have proceeded to trial rather than pleading guilty. We therefore reverse as to claim six and remand for the trial court to either attach record documents that conclusively refute the claim or hold an evidentiary hearing. In ruling on the claim, the court should consider the factors recited in Grosvenor.
Finally, we caution Davis that, if he prevails on one or both of his claims, the *774 ultimate result of withdrawing his plea could be a sentence longer than sixty-three months.
Affirmed in part; reversed as to claims one and six and remanded with instructions.
WALLACE and KHOUZAM, JJ., Concur.
NOTES
[1] See §§ 958.04(2)(b), .045(5)(c), Fla. Stat. (1997); Bloodworth v. State, 769 So. 2d 1117 (Fla. 2d DCA 2000).
[2] In a subsequent motion, Davis amended this last allegation by averring that he would have proceeded to a probation violation hearing.
[3] It is not clear why there should be nothing in the record documenting how Davis came to be on probation. If he was on probation as a result of something other than the successful completion of youthful offender boot camp, see § 958.045(5)(c), the relevant documents would refute Davis's claim. If the record is somehow defective and cannot refute the claim, then an evidentiary hearing is the postconviction court's other option. See Fla. R.Crim. P. 3.850(d); Jacobs, 880 So.2d at 550-51. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625308/ | 689 S.W.2d 209 (1985)
James Lewis ROBERTSON et al.
v.
RANGER INSURANCE COMPANY.
No. C-3774.
Supreme Court of Texas.
May 1, 1985.
*210 Byrd, Davis and Eisenbert, Tom H. Davis and Mike Davis, James Brady, Austin, for petitioners.
Small, Craig and Werkenthin, C.C. Small, Jr., Austin, for respondent.
PER CURIAM.
Amelda Ann McKnight was a passenger in an airplane flown by Byron McKnight, her husband, when the plane crashed in 1974. Both were killed. Thereafter, Robertson, as executor of Amelda Ann's estate, sued the estate of Byron McKnight for wrongful death in the Travis County District Court. Judgment was rendered in that suit, and ultimately appealed to this court. This court dealt with an interspousal immunity question and remanded the cause for a trial on the merits on the basis that New Mexico law on interspousal immunity should be applied. 609 S.W.2d 534.
A motion for rehearing was then filed by McKnight's estate. Before the motion was acted on by this court, the parties settled their claims without notice to Ranger Insurance Company. The district court rendered a consent judgment against the husband's estate based on the settlement agreement. Over one month later this court overruled the motion for rehearing.
The representatives of both estates thereafter sued Ranger Insurance Company, the liability carrier of Byron McKnight's estate, seeking to enforce the consent judgment. Ranger filed a declaratory judgment suit seeking to avoid liability under the consent judgment by claiming that it was void and by raising certain policy defenses. The two cases were consolidated by the district court.
The trial court rendered judgment against Ranger for the amount of the consent judgment and filed findings of fact and conclusions of law which established Ranger's liability under the insurance contract. The court of appeals vacated the trial court's judgment and dismissed the appeal, holding that the judgment was based on the void consent judgment and was void. 680 S.W.2d 618.
The court of appeals correctly found that the consent judgment was rendered at a time when this court had exclusive plenary jurisdiction over the case. See Davis v. Huey, 571 S.W.2d 859 (Tex.1978); Carrillo v. State, 480 S.W.2d 612 (Tex.1972); Amex Warehouse Company v. Archer, 381 S.W.2d 478 (Tex.1964). The trial court had no power to change or modify its judgment once an appeal had been taken therefrom. Carrillo, 480 S.W.2d at 616.
The consent judgment of the trial court is void since that court, as shown by the record, had no jurisdiction to render the judgment. Austin Independent School District v. Sierra Club, 495 S.W.2d 878 (Tex.1973). In this case, Ranger, not a party to that suit, may collaterally attack the consent judgment. See Kirby Lumber Corp. v. Southern Lumber Co., 145 Tex. 151, 196 S.W.2d 387 (1946); State Mortgage Corporation v. Traylor, 120 Tex. 148, 36 S.W.2d 440 (1931). The plaintiffs in this case pleaded only for enforcement of the consent judgment. Since the relief they requested is based upon a void judgment, the portion of the trial court's judgment which awards them that relief is also void. *211 The court of appeals correctly dismissed the appeal as to that portion of the judgment.
Ranger, however, also had a declaratory judgment suit pending before the court. Ranger sought a declaration that it was not liable under its insurance contract with Byron McKnight. The trial court filed a conclusion of law that coverage for liability existed under the policy. While the trial court's judgment did not deal specifically with these issues, by implication, the rendition of judgment against Ranger for the amount of the consent judgment constituted a rendition of judgment against Ranger in its declaratory judgment suit. Vance v. Wilson, 382 S.W.2d 107 (Tex.1964). The court of appeals should have considered those issues, and its failure to do so conflicts with Vance, 382 S.W.2d 107, and Tex. R.Civ.P. 451.
We therefore grant petitioners' applications and, without hearing oral argument, affirm the court of appeals' dismissal of the portion of the appeal based on the void consent decree and reverse the judgment of the court of appeals as to its dismissal of the remainder of the cause. Tex.R.Civ.P. 483. Accordingly, we remand to the court of appeals for consideration of the other points of error presented. See Simon v. L.D. Brinkman and Company, 459 S.W.2d 190 (Tex.1970). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1627191/ | 121 S.W.3d 66 (2003)
Mark ZAPATA, Appellant,
v.
The STATE of Texas, Appellee.
No. 04-02-00763-CR.
Court of Appeals of Texas, San Antonio.
September 3, 2003.
Kimberly S. Keller, Keller Group, Jimmy Parks, Jr., Law Office of Jimmy Parks, Jr., San Antonio, for appellant.
Mary Beth Welsh, Asst. Criminal Dist. Atty., San Antonio, for appellee.
Sitting CATHERINE STONE, Justice, PAUL W. GREEN, Justice, and KAREN ANGELINI, Justice.
OPINION
Opinion by CATHERINE STONE, Justice.
Both parties address the issue of this court's jurisdiction to decide the merit of the complaints raised by appellant Mark Zapata ("Zapata"). Zapata claims that this court has jurisdiction to consider his appeal because the limitations contained in former rule 25.2(b)(3)[1] are not applicable to his appeal. The State responds that Zapata's appeal should be dismissed for lack of jurisdiction pursuant to rule 25.2(b)(3).
In Bayless v. State, the Texas Court of Criminal Appeals noted the effect on an appeal if an appellant did not comply with former rule 25.2(b)(3). 91 S.W.3d 801, 803 n. 2 (Tex.Crim.App.2002). In Bayless, the court concluded that "defects in the notice *67 [of appeal] that do not affect whether the instrument filed with the clerk is actually a notice of appeal do not prevent the appellate court from having jurisdiction over the appeal." Id. "Instead, [such defects] might affect the matters that are cognizable by the appellate court." Id. Accordingly, the issue in this case is not whether our jurisdiction was invoked; it is whether this court "has the power to address the merits of appellant's claims." Id. Whether we have the "power to address the merits of [Zapata's] claims" is determined by whether Zapata's appeal is governed by former rule 25.2(b)(3), which applies to an appeal from a judgment rendered on a defendant's plea of guilty where the punishment assessed does not exceed the punishment recommended by the State and agreed to by the defendant.
Zapata relies to a large extent on dicta in this court's opinion in Moreno v. State, 90 S.W.3d 887, 888-89 (Tex.App.-San Antonio 2002, no pet.). The court in Moreno, however, expressly declined to reach the issue presented in this appeal, stating, "Because the parties did not brief this possible basis for jurisdiction, we do not decide whether jurisdiction is proper under this reasoning." 90 S.W.3d at 889.[2] The only other case cited by Zapata is Ortiz v. State, 933 S.W.2d 102 (Tex.Crim. App.1996). While this court noted the potential "jurisdictional" question that was raised based on the language quoted from Ortiz, this court never fully explored the issue in Moreno.
Ortiz does not address the issue being raised in this appeal. The issue in this appeal is whether former rule 25.2(b)(3) is applicable to an appeal where the defendant moves to withdraw his plea after the trial court inquires into the existence of a plea bargain agreement, hears a defendant's plea, finds the evidence to be sufficient to show the commission of the offense, but defers a finding of guilt pending a pre-sentence investigation. Zapata contends that former rule 25.2(b)(3) is not applicable because by withdrawing his plea, he withdrew his agreement to the punishment recommendation. As a result, Zapata contends that the punishment assessed was not "agreed to by the defendant." We disagree.
Article 26.13 governs the procedure to be followed by the trial court in plea proceedings. First, the trial court must "inquire as to the existence of any plea bargaining agreements between the State and the defendant and, in the event that such an agreement exists, the court shall inform the defendant whether it will follow or reject [the plea] agreement in open court and before any finding on the plea." TEX. CODE CRIM. PROC. ANN. art. 26.13 (Vernon Supp.2003). Article 26.13 only expressly permits the defendant to withdraw his plea of guilty or nolo contendere if the court rejects the agreement. Id. Article 26.13 does not expressly permit the defendant to withdraw his plea after a plea is entered but pending the trial court's decision regarding whether to accept the agreement.
In Ortiz, the Texas Court of Criminal Appeals was deciding when jeopardy attaches in a case involving a negotiated guilty plea. 933 S.W.2d at 105. "Given the purposes and policies of the prohibition against double jeopardy," the court held that jeopardy attaches "when the trial court accepts the plea bargain." Id. at 107. The court reasoned that a defendant is not "put to a trial before the trier of fact" until that point. Id. at 106. In *68 reaching this conclusion, the court made statements regarding the binding effect of a plea bargain agreement and a defendant's ability to withdraw his plea. The court stated, "the trial judge never accepted the plea agreement"; therefore, "the contract of the plea agreement was never binding on the parties." Id. at 104. The court further stated, "in a negotiated plea proceeding, even after a defendant pleads guilty, the issue is not joined [for the factfinder] because neither the State nor Appellant are bound by his plea until the trial court accepts the plea agreement. And, if the court does not accept the agreement, a defendant may withdraw his plea." Id. at 106.
The statements made in Ortiz are similar to statements made in other cases in which the courts are analyzing the "binding" effect of a plea agreement. See, e.g., Ex parte Williams, 637 S.W.2d 943, 947 (Tex.Crim.App.1982) (stating "contract" does not become operative until the court announces it will be bound by the plea bargain agreement in discussing whether a plea bargain agreement was illegal); Bryant v. State, 974 S.W.2d 395, 398 (Tex. App.-San Antonio 1998, pet. ref'd) (relying on language regarding when plea agreement is operative in Williams and holding that State was permitted to "renege" on its agreement before the trial court accepted the agreement but noting that the defendant had been given a chance to withdraw his plea after the State "reneged"); Tate v. State, 834 S.W.2d 566, 572 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd) (noting language in Williams in deciding that record did not demonstrate existence of plea agreement absent punishment recommendation). In Williams, the Texas Court of Criminal Appeals cited a United States Supreme Court opinion and an earlier opinion of the court to support the contention that, "Once the court makes such an announcement [that it will be bound by the plea bargain agreement], the State is bound to carry out its side of the bargain." 637 S.W.2d at 947 (citing Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971) and De Russe v. State, 579 S.W.2d 224 (Tex.Crim. App.1979)). However, in De Russe, the court actually stated that, "Where a defendant enters a plea of guilty or nolo contendere pursuant to a plea bargain agreement, the State is bound to carry out its side of the bargain." 579 S.W.2d at 236. The court refused to enforce the plea bargain agreement in that case because the agreement was withdrawn prior to the entry of appellant's plea. Id. Accordingly, De Russe supports the contention that the agreement is binding as between the State and the defendant when the defendant enters his plea.
In Santobello v. New York, the petitioner agreed to plead guilty to a lesser-included offense in exchange for the prosecutor's agreement to make no recommendation as to the sentence. 404 U.S. at 259, 92 S. Ct. 495. "The court accepted the plea and set a date for sentencing." Id. "A series of delays followed, owing primarily to the absence of a pre-sentence report, so that by September 23, 1969, petitioner still had not been sentenced." Id. By that date, petitioner obtained new defense counsel, and the new defense counsel immediately moved to withdraw the guilty plea. Id. On November 26, 1969, the court denied the motion and set January 9, 1970, as the date for sentencing. Id. at 260, 92 S. Ct. 495. By this time, the prosecutor involved in the plea negotiations had been replaced by a new prosecutor, who made a recommendation as to sentencing. Id. Defense counsel objected on the basis of the plea agreement. Id. The sentencing judge stated that he was not influenced by the prosecutor's statement so adjournment was not necessary and proceeded to impose the *69 maximum sentence of one year. Id. at 260-61, 92 S. Ct. 495.
The Court initially noted the numerous benefits and advantages of the plea bargaining process. Id. at 260-61, 92 S. Ct. 495. "However, [the Court noted that] all of these considerations presuppose fairness in securing agreement between an accused and a prosecutor." Id. at 261, 92 S. Ct. 495. Although noting that a court has the discretion to reject a plea agreement, the Court emphasized:
This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by the safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.
Id. at 262, 92 S. Ct. 495. The Court then concluded:
[W]e conclude that the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case to the state courts for further consideration. The ultimate relief to which petitioner is entitled we leave to the discretion of the state court, which is in a better position to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea, in which case petitioner should be resentenced by a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by petitioner; i.e., the opportunity to withdraw his plea of guilty.
Id. at 262-63, 92 S. Ct. 495. Thus, in Santobello, the United States Supreme Court held that a plea agreement is enforceable against the State after the defendant enters his plea based on that agreement. If the State violates the agreement during the sentencing proceeding, the defendant is at least entitled to specific performance of the agreement as against the State. This does not preclude the trial court from rejecting the plea agreement; it simply precludes the State from violating the plea agreement.
In Blanco v. State, 18 S.W.3d 218, 219 (Tex.Crim.App.2000), the Texas Court of Criminal Appeals noted the rule in Santobello that permits a defendant to insist on the benefit of the bargain. The court then reasoned, "Where, as in this case, there has been no unfairness `in securing agreement between an accused and a prosecutor,' there is no reason why this rule should not apply to defendants." Id. (quoting Mabry v. Johnson, 467 U.S. 504, 104 S. Ct. 2543, 81 L. Ed. 2d 437 (1984)).
The language used by the courts regarding when a plea agreement becomes binding can be read consistently with Santobello if a plea bargain agreement is envisioned as a two step process. The first step in the process is the agreement between the prosecutor and the defendant with regard to the guilty plea and the avoidance of trial. Once made, that agreement becomes binding when the defendant enters his plea. At that point, both the State and the defendant are bound by the terms of the plea bargain agreement and are not permitted to take actions inconsistent with the agreement. Therefore, the State must abide by its agreement regarding the recommendations it will make, and the defendant must abide by his agreement to plead guilty. See Blanco, 18 S.W.3d at 219 (rule applies both ways).
*70 The second step in the process involves the trial court's acceptance or rejection of the recommended punishment. Once the plea agreement is made, the recommended punishment becomes binding only if the court accepts the recommendation. If the court rejects the recommendation, the agreed punishment is not binding, and the defendant may withdraw his plea. TEX. CODE CRIM. PROC. ANN. art. 26.13 (Vernon Supp.2003).
Using purely contractual terms, the trial court's rejection of the plea agreement could be likened to a condition subsequent to the plea agreement between the State and the defendant. A condition subsequent is a condition referring to a future event, upon the happening of which the obligation becomes no longer binding upon the other party, if he chooses to avail himself of the condition. Rincones v. Windberg, 705 S.W.2d 846, 848 (Tex.App.-Austin 1986, no pet.). The trial court's rejection of the plea agreement would be a condition subsequent or an event that would make the plea agreement no longer binding upon the defendant.
From a policy perspective, permitting the trial court to obtain a pre-sentence investigation report prior to deciding whether to follow the punishment recommendation without the risk of the defendant or the prosecutor jeopardizing the plea agreement would appear preferable. As one commentator has noted:
As a matter of policy, it probably is preferable for the judge always to reserve accepting a plea agreement until after the presentence report has been examined. The judge's duty to scrutinize the agreement from the public's and the defendant's viewpoints can best be executed after the judge has obtained the additional information about the offense and defendant contained in the presentence report. If the Ortiz plurality is followed in subsequent cases, it would permit acceptance of the agreement to be postponed until after the presentence report has been received. So long as the trial court scrupulously permits the defendant to withdraw the plea if the court later rejects or substantially modifies the agreement, the defendant's interests are protected.
43 GEORGE E. DIX AND ROBERT O. DAWSON, 43 TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE, § 34.105 (2nd ed.2001).
Based on the United States Supreme Court's holding in Santobello, we hold that rule 25.2(b)(3) applies when a defendant enters a plea of guilty or nolo contendere based on a plea bargain agreement and the punishment imposed by the court does not exceed the punishment recommended in accordance with the plea bargain agreement. A motion to withdraw filed after the plea has been entered does not affect the defendant's agreement regarding the recommended punishment or the applicability of the rule.
Given the limitations imposed by rule 25.2(b)(3), this court does not have "the power to address the merits of appellant's claims." 91 S.W.3d at 803 n. 2. Accordingly, the trial court's judgment is affirmed.
NOTES
[1] Rule 25.2(b)(3) was amended in 2003. See TEX.R.App.P. 25 cmt.
[2] We note that Moreno issued before the Texas Court of Criminal Appeals clarified in Bayless that the issue was not a jurisdictional issue but an issue relating to whether the appellate court had the power to decide the merits of the appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625085/ | 126 F. Supp. 775 (1954)
Guy E. BEARDSLEY, Jr., and Katherine K. Beardsley, Plaintiffs,
v.
UNITED STATES of America, Defendant.
Civ. No. 4525.
United States District Court, D. Connecticut.
October 29, 1954.
*776 Benjamin Hinman, Shipman & Goodwin, Hartford, Conn., for plaintiffs.
Simon S. Cohen, U. S. Atty., Robert M. FitzGerald, Asst. U. S. Atty., Hartford, Conn., for defendant.
SMITH, Chief Judge.
The defendant has moved to dismiss on the ground that the plaintiff did not satisfy the requirements of paragraph (2) of Section 3772(a), 26 U.S. C.A. in that the plaintiffs failed to begin their action within two years from the mailing by the Internal Revenue Commissioner of a notice of disallowance of the claim to which the suit relates.
The facts have been stipulated and may be summarized as follows: the plaintiffs duly paid their income taxes for the year 1946; in 1950 they filed a claim for refund as provided by law; on or about April 26, 1951 the plaintiffs received a notice of disallowance of said claim after an examination by an Internal Revenue Agent, but such notice was issued without previously apprising the plaintiffs of the Revenue Agent's report, either by furnishing the plaintiffs or their attorneys with such report or by issuance of the customary thirty day letter; on or about May 1951 the plaintiffs through their attorney inquired of the Acting Assistant Collector of Internal Revenue at Hartford as to why notice of disallowance had issued without any opportunity to protest; the Acting Assistant Collector informed them that a clerical error had been made, that a regular thirty day letter would issue, and that the notice of disallowance might be ignored; a course of negotiation was carried on between plaintiffs and the Revenue Agents culminating in a letter "reaffirming" the disallowance, dated June 19, 1953; the complaint was filed June 27, 1953, approximately two months after the two year period running from April 26, 1951.
To meet the government's assertion that they are barred by the limitation in Section 3772(a) (2), the plaintiffs develop an argument that such section is not applicable because there was a withdrawal or revocation of the notice.
The government's position is based on the amendment to the statute effective June 22, 1936, Sec. 807, 49 Stat. 1745. That amendment added what is in substance paragraph (3) of Sec. 3772(a) which reads:
"Any consideration, reconsideration, or action by the Commissioner with respect to such claim following the mailing of a notice by registered mail of disallowance shall not operate to extend the period within which suit may be begun."
*777 The facts in this case would appear at first blush to fall within the wording of the statute.
There are cases supporting the idea that the key date for starting the two year period running is the date of mailing the notice of disallowance, regardless of the propriety of its issuance. See Clinton Trust Co. v. U. S., 1943, 52 F. Supp. 671, 100 Ct. Cl. 348, and John F. Jelke Co. v. Smietanka, 7 Cir., 86 F.2d 470, decided November 27, 1936, but construing the pre-amendment statute.
In support of the plaintiffs' contention, it should be noted that the statute does not in specific terms prohibit withdrawal, revocation, or cancellation of the notice by the Commissioner.
To the argument that the Commissioner should therefore be deemed to have the power, the government answer appears to be that Congress took cognizance of the possibility of error, but gave the claimant two years in which to get administrative relief or bring suit, and that subsections (2) and (3) of Sec. 3772 when read together are a prohibition against withdrawal.
Plaintiffs cite two cases, Roe v. U. S., 1948, 77 F. Supp. 1010, 112 Ct. Cl. 224, and Schmitt v. Kavanagh, D.C.E.D.S.D. Mich.1950, 91 F. Supp. 659, for the proposition that what appears to be a proper notice on its face may be regarded as ineffective by the courts in certain circumstances.
It is admitted that these cases are distinguishable in some regards from this one but the principle has application here.
It appears that Congress intended to preclude the extension of the period by the Commissioner's further consideration of the matter after the notice had been sent in the regular course.
If literally enforced, however, in a case such as this, which did not proceed in the regular course, since the notice had been sent after inadvertent omission of one usual step in the process of consideration, and where completion of consideration in regular course took more than two years from the time of the original notice, the result is unfairness to the taxpayer which could not have been intended by the Congress.
The Commissioner in effect withdrew the original notice by going back in the process to a stage prior to the time for giving notice, which stage had been omitted, and proceeding from that point. Both parties evidently so construed his action. In the absence of specific prohibition of such action the Court should not forbid it.
The effective date for notice of disallowance in this case is that of the notice of "reaffirmance". This action was commenced promptly after that date, and must be held timely.
The motion to dismiss is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625099/ | 15 So. 3d 682 (2009)
GREEN TREE SERVICING, LLC, Appellant,
v.
Elizabeth Dianne McLEOD, as Personal Representative of the Estate of Stanley McLeod, deceased, Appellee.
No. 2D08-2978.
District Court of Appeal of Florida, Second District.
June 26, 2009.
Rehearing Denied September 2, 2009.
*684 Mary Ruth Houston and Glennys Ortega Rubin of Shutts & Bowen, LLP, Orlando, for Appellant.
Charles M. Schropp and Charles P. Schropp of Schropp Law Firm, P.A., Tampa, for Appellee.
EN BANC
WALLACE, Judge.
Green Tree Servicing, LLC (Green Tree), appeals a nonfinal order denying its motion to stay the action in the court below and to compel arbitration.[1] Because we find no error in the circuit court's conclusion that Green Tree had waived its right to arbitration by serving multiple discovery requests related to the merits of the pending action, we affirm the circuit court's order. In so doing, we recede from Merrill Lynch Pierce Fenner & Smith, Inc. v. Adams, 791 So. 2d 25 (Fla. 2d DCA 2001).
I. THE FACTS AND PROCEDURAL HISTORY
On October 21, 1998, Stanley McLeod purchased a manufactured home from Quality Mobile Homes, Inc. (the Seller). In connection with this purchase, Mr. McLeod executed a Manufactured Home Retail Installment Contract and Security Agreement (the Contract) with the Seller. The Contract contained an arbitration clause which provided in pertinent part that "[a]ll disputes, claims or controversies arising from or relating to this Contract or the parties thereto shall be resolved by binding arbitration." Green Tree ultimately acquired ownership of the Contract.
In November 2005, Mr. McLeod filed an action against Green Tree in the Hillsborough County Circuit Court for alleged violations of the Florida Consumer Collection Practices Act. Green Tree promptly removed the action to the United States District Court for the Middle District of Florida, Tampa Division. Two days after removing the action to federal court, Green Tree filed its motion to stay case and compel arbitration. The federal court did not rule on this motion. Instead, on February 27, 2006, the federal court remanded the case to the circuit court. On March 20, 2006, Green Tree filed its renewed motion to stay case and compel arbitration in the circuit court.
While his case was being transferred from the circuit court to federal court and back to the circuit court, Mr. McLeod died. His widow, Elizabeth Dianne McLeod, was appointed as the personal representative of her late husband's estate and was substituted as the party plaintiff in the action against Green Tree. In March 2007, Mrs. McLeod filed a second amended complaint that added a claim against Green Tree for the wrongful death of Mr. McLeod. In response, Green Tree reasserted its arbitration claim by filing a motion to stay case and compel arbitration of the second amended complaint.
Much of the later procedural history of the case stemmed indirectly from the delay that ensued in obtaining a ruling on Green Tree's request for arbitration. For *685 reasons not material to our decision, the hearing on Green Tree's arbitration motion was scheduled, continued, and rescheduled numerous times. The circuit court did not actually hear the motion until almost two and one-half years after Mr. McLeod had filed the lawsuit.
In March 2006, Green Tree filed a motion requesting a protective order staying any discovery in the case pending a ruling on its motion to stay and compel arbitration. It does not appear that the circuit court ever ruled on this motion. In September 2006, Green Tree filed a renewed motion for protective order as to discovery pending a ruling on its motion to compel arbitration. In the renewed motion, Green Tree requested that all discovery that was not related to its pending motion to compel arbitration be stayed pending a ruling on that motion.
On February 28, 2007, the circuit court conducted a hearing on Green Tree's renewed motion to stay discovery. At the hearing, counsel for Mrs. McLeod informed the court that he wished to conduct additional discovery related to Green Tree's arbitration motion. The circuit court ruled that Mrs. McLeod would have an additional ninety days to complete "arbitration related discovery." In a significant exchange at the hearing, counsel for both parties agreed that discovery related to the merits of Mrs. McLeod's claims would not be appropriate until Green Tree's pending arbitration motion was resolved:
[Counsel for Green Tree]: Your Honor, I believe [counsel for Mrs. McLeod] has agreed to this on the record, but I want to make sure it's clear at this point, because all that's being litigated right now is whether this should go to arbitration. We are not in order not to waive our right to arbitration, we cannot participate in any arbitration in any discovery that goes outside the issue of arbitration itself.
[Counsel for Mrs. McLeod]: I did stipulate to that.
THE COURT: Okay.
Thus Green Tree acknowledged at the hearing that its participation in discovery related to the merits of the case would result in a waiver of its claimed right to arbitration.
Up to this point in the litigation, Green Tree had been represented by Shutts & Bowen LLP, its current appellate counsel. However, on May 25, 2007, another law firm filed a notice of appearance as counsel for Green Tree. On July 12, 2007, in accordance with a stipulation, the circuit court entered an order substituting the new law firm as counsel for Green Tree.
Approximately one month later, the new law firm served a series of discovery requests on Mrs. McLeod. These discovery requests were all directly related to the merits of her pending claims. The discovery requests included the following items: (1) "Wrongful Death Request to Produce to Plaintiff," (2) "Collateral Source Interrogatories to Plaintiff," (3) "Expert Interrogatories to Plaintiff," and (4) "Wrongful Death Interrogatories to Plaintiff." Mrs. McLeod did not comply with the discovery requests. In November 2007, Green Tree's new counsel wrote a letter to Mrs. McLeod's counsel requesting that the completed discovery be forwarded within ten days of the receipt of the letter. The discovery responses were not forthcoming, and Green Tree filed its motion to compel discovery responses on February 8, 2008. Green Tree scheduled a hearing on its motion to compel for March 12, 2008. On the day of the scheduled hearing, Green Tree withdrew its discovery requests, withdrew the motion to compel, and cancelled the scheduled hearing on its motion.
*686 II. THE CIRCUIT COURT'S RULING
Green Tree's motion to stay and compel arbitration was finally heard on April 22, 2008. At the hearing, Mrs. McLeod opposed arbitration on two grounds: (1) the arbitration clause was both procedurally and substantively unconscionable and (2) Green Tree had waived its right to arbitration. The circuit court found that the arbitration clause was neither procedurally nor substantively unconscionable. However, the circuit court agreed with Mrs. McLeod that Green Tree had waived its right to arbitration by participating in discovery related to the merits of the case. The circuit court's oral announcement of its ruling in pertinent part was as follows:
THE COURT: Now making a special appearance to file a Motion to Quash Service of Process. So there's no waiver there. But engaging in discovery engaging in discovery on the merits of the case though, I think that crosses the line.
....
However, I think, if the interrogatories had been sent and then right away withdrawn, that's one thing. But they were sent and there were letters sent and finally the Motion to Compel. I believe the Motion to Compel was noticed for a hearing, wasn't it?
....
But, in any event, it went so far it went so far as to and from that I can infer you know, from that I can infer that [Mrs. McLeod at] least [was] put on notice that [she] had to start getting some discovery, and discovery was not toward arbitrability. It was toward the damages issue of the case. So I'll find waiver.
The circuit court made similar findings in its written order denying Green Tree's arbitration motion:
This Court finds [Green Tree] waived the right to arbitration by taking actions inconsistent with its desire to arbitrate and participating in the lawsuit. Specifically, the court finds that on August 16, 2007[, Green Tree] sent multiple sets of interrogatories and a request to produce to [Mrs. McLeod] relating to issues other than whether this case was subject to arbitration. Counsel for [Green Tree] also subsequently sent a letter on November 16, 2007[,] to [Mrs. McLeod's] counsel demanding that these discovery requests be answered and ultimately moved to compel responses to this discovery on February 8, 2008.
Thus the circuit court based its conclusion about waiver on Green Tree's participation in discovery directed to the merits of Mrs. McLeod's claims.
III. DISCUSSION
A. Preliminary Matters
"In determining whether a dispute is subject to arbitration, courts consider at least three issues: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived." Stacy David, Inc. v. Consuegra, 845 So. 2d 303, 306 (Fla. 2d DCA 2003) (citing Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla.1999)). Here, we address only the issue of waiver.
"Generally, whether a party has waived the right to arbitrate is a question of fact, reviewed on appeal for competent, substantial evidence to support the lower court's findings." Mora v. Abraham Chevrolet-Tampa, Inc., 913 So. 2d 32, 33 (Fla. 2d DCA 2005) (citing Raymond James Fin. Servs., Inc. v. Saldukas (Saldukas I), 851 So. 2d 853, 856 (Fla. 2d DCA 2003), approved, 896 So. 2d 707 (Fla.2005)). On the other hand, "the standard of review applicable to the trial court's construction *687 of the arbitration provision, and to its application of the law to the facts found, is de novo." Gainesville Health Care Ctr., Inc. v. Weston, 857 So. 2d 278, 283 (Fla. 1st DCA 2003).
B. Waiver of the Right to Arbitration
"Waiver" has been defined "as the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right." Raymond James Fin. Servs., Inc. v. Saldukas (Saldukas II), 896 So. 2d 707, 711 (Fla.2005). The general definition of waiver is applicable to the right to arbitrate. Id. Concerning the issue of waiver in the context of an arbitration agreement, the Supreme Court of Florida has quoted with approval Judge Mikva's opinion in National Foundation for Cancer Research v. A.G. Edwards & Sons, Inc., 821 F.2d 772, 774 (D.C.Cir. 1987). Saldukas II, 896 So.2d at 711. Judge Mikva addressed the issue as follows:
The right to arbitration, like any contract right, can be waived. See [Cornell & Co. v. Barber & Ross Co., 360 F.2d 512, 513 (D.C.Cir.1966)]. The Supreme Court has made clear that the "strong federal policy in favor of enforcing arbitration agreements" is based upon the enforcement of contract, rather than a preference for arbitration as an alternative dispute resolution mechanism. [Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218-24, 105 S. Ct. 1238, 84 L. Ed. 2d 158 (1985)]. Thus, the question of whether there has been waiver in the arbitration agreement context should be analyzed in much the same way as in any other contractual context. The essential question is whether, under the totality of the circumstances, the defaulting party has acted inconsistently with the arbitration right. See Cornell, 360 F.2d at 513.
Nat'l Found. for Cancer Research, 821 F.2d at 774. For these reasons, "there is no requirement for proof of prejudice in order for there to be an effective waiver of the right to arbitrate." Id. Thus "an arbitration right must be safeguarded by a party who seeks to rely upon that right and the party must not act inconsistently with the right." Id.
A party's active participation in a lawsuit is inconsistent with arbitration. Thus "[t]he prosecution or defense of a lawsuit on issues subject to arbitration may constitute a waiver." Seville Condo. # 1, Inc. v. Clearwater Dev. Corp., 340 So. 2d 1243, 1245 (Fla. 2d DCA 1976). It follows that a party may waive his or her right to arbitration by filing a lawsuit without seeking arbitration, id.; by filing an answer to a pleading seeking affirmative relief without raising the right to arbitration, Bared & Co. v. Specialty Maint. & Constr., Inc., 610 So. 2d 1, 3 (Fla. 2d DCA 1992); and by moving for summary judgment, Lapidus v. Arlen Beach Condo. Ass'n, 394 So. 2d 1102, 1103 (Fla. 3d DCA 1981). A party who timely asserts the right to arbitration may still waive the right by later conduct that is inconsistent with the arbitration request. See Klosters Rederi A/S v. Arison Shipping Co., 280 So. 2d 678, 681 (Fla.1973). Furthermore, once a party has waived the right to arbitration by active participation in a lawsuit, the party may not reclaim the arbitration right without the consent of his or her adversary. See Estate of Williams ex rel. Williams v. Manor Care of Dunedin, Inc., 923 So. 2d 615, 616-17 (Fla. 2d DCA 2006); Bared & Co., 610 So.2d at 3.
C. Waiver by Participation in Discovery
Here, the issue before the circuit court was whether Green Tree waived its *688 claimed right to arbitration by participating in discovery related to the merits of the pending litigation. The circuit court's ruling that participation in discovery related to the merits of pending litigation operated as a waiver of a contractual right to arbitration is in accord with the majority view in the Florida courts. Both the Third District and the Fifth District have unequivocally held that propounding discovery directed to the merits of pending litigation before moving to compel arbitration results in a waiver of the right to arbitration. See Olson Elec. Co. v. Winter Park Redevelopment Agency, 987 So. 2d 178, 179 (Fla. 5th DCA 2008); Estate of Orlanis ex rel. Marks v. Oakwood Terrace Skilled Nursing & Rehab. Ctr., 971 So. 2d 811, 812-13 (Fla. 3d DCA 2007); Coastal Sys. Dev., Inc. v. Bunnell Found., Inc., 963 So. 2d 722, 724 (Fla. 3d DCA 2007). The First District and the Fourth District have not ruled on the question of whether propounding discovery directed to the merits of pending litigation, by itself, results in a waiver of the right to arbitration. See Hill v. Ray Carter Auto Sales, Inc., 745 So. 2d 1136 (Fla. 1st DCA 1999) (affirming a trial court's finding that a defendant who answered a complaint without requesting arbitration and also participated in discovery had not waived its right to arbitration where the defendant's attorney did not have a copy of the contract containing the arbitration clause when he filed the answer to the complaint and was thus unaware of the arbitration clause, and the attorney filed a motion requesting arbitration as soon as he received a copy of the contract, which was within two months of the service of the summons and complaint); Hardy Contractors, Inc. v. Homeland Prop. Owners Ass'n, 558 So. 2d 543 (Fla. 4th DCA 1990) (disagreeing with the dissenting judge's view that a third-party defendant which timely raised its right to arbitration and subsequently participated in discovery related to the merits while the arbitration issue was pending did not waive its right to arbitration). But the First District and the Fourth District have held that a party waives its right to arbitration by propounding discovery directed to the merits of pending litigation and also engaging in other actions inconsistent with arbitration. See Sitarik v. JFK Med. Ctr. Ltd. P'ships, 11 So. 3d 973, 974 (Fla. 4th DCA 2009) ("Here, Sheridan attacked the merits of the litigation and thus, actively participated in the litigation by filing an answer, affirmative defenses, two motions to dismiss, as well as issuing a subpoena and propounding discovery."); Md. Cas. Co. v. Dep't of Gen. Servs., 489 So. 2d 54, 57 (Fla. 1st DCA 1986) ("[T]he record reveals that Pinter waived its right to elect arbitration and proceeded to litigate in court by filing an answer to appellees' complaint, filing discovery requests, and filing various motions without raising the right to arbitration."). Nevertheless, the positions of the First District and the Fourth District on the issue are unclear because Sitarik and Maryland Casualty Co. involved activity not limited to propounding discovery directed to the merits of pending litigation.
D. This Court's Decision in Merrill Lynch
However, this court has previously reached a different conclusion on the issue of whether participating in discovery related to the merits of pending litigation results in a waiver of the right to arbitrate. See Merrill Lynch Pierce Fenner & Smith, Inc. v. Adams, 791 So. 2d 25, 26 (Fla. 2d DCA 2001). In Merrill Lynch, the appellees, who were the plaintiffs in the litigation, filed a complaint asserting various claims against the appellants.[2]Id. *689 at 27. Together with their complaint, the appellees filed a motion to stay the proceedings and a motion to compel arbitration. Id. Subsequently, the appellees served a request for the production of documents related to the merits of the litigation and also served a notice of the taking of the deposition of a Merrill Lynch employee who had authored a document related to the merits of their claims. Id. at 28.
At a hearing on the appellees' motion to compel arbitration, the appellants argued that the appellees had waived their right to arbitration by continuing to litigate their case after requesting arbitration. Id. In response, the appellees contended that the assertion of their right to arbitration in a pleading filed before they engaged in discovery was sufficient to preserve the arbitration right regardless of their later conduct. Id. Finding that the appellees had not acted inconsistently with their right to arbitration, the circuit court granted their motion to compel arbitration. Id. at 26, 28.
On appeal, the appellants argued that the appellees had "waived their right of arbitration by engaging in litigation." Id. at 26. The majority opinion framed the issue presented for decision as "whether appellees were involved in litigation to the extent of waiving their right to arbitration." Id. The majority answered this question in the negative and affirmed the circuit court's order compelling arbitration. Id. The late Judge Jerry R. Parker dissented in part. Id. at 26-29 (Parker, J., concurring in part and dissenting in part). In his dissent, Judge Parker concluded that the appellees had waived their right to arbitration "by choosing to participate in formal discovery." Id. at 29.
The majority offered three reasons in support of its legal conclusion. First, referring to dismissals for failure to prosecute under Florida Rule of Civil Procedure 1.420, the majority said that "it is questionable whether discovery, including depositions, even constitutes record activity." Id. at 26 (majority opinion). Second, the majority explained that "if taking a deposition is litigation, a similar procedure is available to appellees under the arbitration code, and therefore, [appellees'][3] acts were not inconsistent with arbitration." Id. Third, the majority observed that it had "found no case law which would require a denial of appellees' right to arbitration based on their participation in discovery." Id.
In his dissent, Judge Parker cited several cases in support of the proposition that "a party's actions after asserting the right to arbitration may be considered when determining whether the party has, in fact, waived its right to arbitrate." Id. at 28 (Parker, J., concurring in part and dissenting in part) (citing Klosters Rederi A/S, 280 So.2d at 681). Observing that "the appellees continued to litigate their case after initially demanding arbitration," Judge Parker concluded that they had waived their right to arbitration by participating in discovery. Id. at 28-29. Judge Parker supported his conclusion by noting the scope of the discovery sought by the appellees. He pointed out that "[i]n one discovery request alone, Merrill Lynch was required to provide over 7000 documents to the appellees." Id. at 29.
*690 E. The Parties' Arguments
Here, the parties have devoted considerable attention to the Merrill Lynch case in their respective arguments. Green Tree argues that it asserted its right to arbitration from the beginning of the case and thereafter. Green Tree cites Merrill Lynch for the proposition that a party's participation in significant discovery, including depositions by the party seeking arbitration, does not constitute sufficient involvement in litigation to the extent of operating as a waiver after the party has already invoked its arbitration rights. According to Green Tree, "this [c]ourt's prior decision in Merrill Lynch dictates that Green Tree did not waive its arbitral rights." Finally, Green Tree contends that a proper consideration of the totality of the circumstances by the circuit court would have led it to the conclusion that participation in discovery alone coupled with the initial assertion of arbitration rights was insufficient to result in a waiver.
In response, Mrs. McLeod argues that Green Tree waived its right to arbitration by propounding discovery requests after its initial assertion of the right to arbitration. Mrs. McLeod seeks to distinguish Merrill Lynch on three grounds. First, the Merrill Lynch court "was asked to review a trial court's finding that no waiver of arbitration had occurred, whereas this court is being asked to do exactly the opposite and review the trial court's finding that a waiver of arbitration in fact had occurred." As the Merrill Lynch majority noted in a parenthetical, "waiver is a question of fact and ... a trial judge will be reversed only if there is no competent, substantial evidence to support the finding." Id. at 26. Here, just as in Merrill Lynch, there is competent, substantial evidence in the record to support the circuit court's finding on the issue of waiver. Second, Green Tree filed a motion to compel in order to enforce its discovery requests, and a motion to compel does constitute record activity. Third, Green Tree's argument that similar discovery would have been available in arbitration is not only inaccurate, "but also totally ignores the fact that it was Green Tree that initially opposed merits-related discovery in this litigation, going so far as to assert that its participation in such discovery would be a waiver of arbitration." In the face of the position taken by Green Tree in the circuit court about the effect of merits-related discovery on its arbitration right, Mrs. McLeod submits that Green Tree "should not now be heard to say that its merits-related discovery was insignificant."
F. A Reexamination of Merrill Lynch
The Merrill Lynch majority concluded that a party's participation in discovery related to the merits of pending litigation does not result in a waiver of the party's right to arbitration. Thus Green Tree's argument that Merrill Lynch requires a reversal of the circuit court's order denying Green Tree's motion to stay and compel arbitration has some force. Mrs. McLeod has presented arguments upon which we might rely to distinguish Merrill Lynch. However, after considering the arguments for distinguishing our prior precedent, we find them to be unpersuasive.
Instead of distinguishing Merrill Lynch, we think that a reexamination of that decision is in order. A review of the three reasons offered by the Merrill Lynch majority for reaching the legal rule stated in that case reveals that those reasons were unsound. We turn now to an examination of these three reasons.
(1) Discovery as record activity. Referring to Judge Parker's concern about the appellees' participation in discovery, *691 the Merrill Lynch majority said: "[I]t is questionable whether discovery, including depositions, even constitutes record activity." Id. at 26. In support of this statement, the majority cited two cases that addressed the question of whether the filing of a notice of taking deposition and the actual taking of a deposition constituted record activity for the purpose of avoiding a dismissal for failure to prosecute under earlier versions of Florida Rule of Civil Procedure 1.420.[4]Id. Here, the majority asked the wrong question. The issue of whether discovery constitutes "record activity" for the purpose of avoiding a dismissal for failure to prosecute under rule 1.420 does not have any bearing on the question of whether a party may waive its right to arbitration by propounding discovery related to the merits of the case.
Instead, the appropriate inquiry is whether the party's participation in such discovery is activity that is inconsistent with the right to arbitration. See Saldukas II, 896 So.2d at 711. This inquiry has nothing to do with record activity. Action that is inconsistent with the right to arbitration may occur outside the case file as well as in it. See, e.g., Hillier Group, Inc. v. Torcon, Inc., 932 So. 2d 449, 456-57 (Fla. 2d DCA 2006) (recognizing that the litigation of arbitrable issues in an earlier case may result in a waiver of the right to arbitration in a related case where the party's participation in the litigation in the earlier case would give it an advantage in a subsequent arbitration); Saldukas I, 851 So.2d at 856 (stating that a party's repeated presuit assertions that the opposing parties had no right to arbitration and threatening to file a lawsuit to enjoin an arbitration proceeding were sufficient to support a finding that a party had waived its right to arbitration); White Constr. Co. v. State, Dep't of Transp., 860 So. 2d 1064, 1067-68 (Fla. 1st DCA 2003) (holding that a party had waived its right to arbitration by failing to submit the dispute to arbitration within the contractual time limit for requesting arbitration). It follows that the first reason offered by the Merrill Lynch majority in support of its conclusion is unsound.
(2) The availability of discovery in arbitration. Reframing the pertinent issue as whether propounding discovery related to the merits of pending litigation is inconsistent with arbitration leads to an examination of the second reason offered by the Merrill Lynch majority. On this question, the Merrill Lynch majority said: "[I]f taking a deposition is litigation, a similar procedure is available to appellees under the arbitration code, and therefore, [appellees'] acts [of engaging in discovery] were not inconsistent with arbitration." 791 So.2d at 26. In support of this proposition, the Merrill Lynch majority cited to section 684.15, Florida Statutes (1999), a provision appearing in chapter 684, the Florida International Arbitration Act (the FIAA). Although it is impossible to determine the applicability of the FIAA to the dispute in Merrill Lynch from the facts stated in the opinion, it seems doubtful that the dispute in that case was subject to the FIAA.[5] We *692 will analyze the basis for the majority's proposition concerning the availability of discovery in arbitration by first considering section 684.15 and then making a brief review of the availability of depositions and discovery in arbitration proceedings generally.
Section 684.15 does not support the Merrill Lynch majority's assumption equating the availability of depositions and discovery in arbitration proceedings to the availability of those procedures in judicial proceedings. Section 684.15 provides, in pertinent part, as follows:
(2) The arbitral tribunal may issue subpoenas or other demands for the attendance of witnesses or for the production of books, record, documents, and other evidence, may administer oaths, may order depositions to be taken or other discovery obtained, without regard to the place where the witness or other evidence is located, and may appoint one or more experts to report to it.
(Emphasis added.) See generally Jarvis, supra, at 7-13. In accordance with section 684.15(2), depositions and discovery are available in arbitrations conducted under the FIAA. However, in order to take a deposition or propound discovery requests, one must first obtain an appropriate order from the arbitral tribunal. Section 684.15(2) provides that the arbitral tribunal "may order depositions to be taken or other discovery obtained." (Emphasis added.) Thus a party's ability to engage in discovery in FIAA arbitration is subject to the discretion of the arbitral tribunal. Cf. Rintin Corp., S.A. v. Domar, Ltd., 374 F. Supp. 2d 1165, 1170 (S.D.Fla.2005) (rejecting argument by party to FIAA arbitration that the arbitral proceedings were unfair in part because it was unable to obtain discovery on certain issues). Such a restriction on a party's ability to conduct discovery in an FIAA arbitration contrasts sharply with the ready availability of depositions and discovery in litigation conducted under the Florida and federal civil rules.
The vast majority of arbitrations conducted in Florida will not be subject to the FIAA but, rather, will be conducted under either the Florida Arbitration Code, chapter 682, Florida Statutes (the FAC), or the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (the FAA).[6]See generally Nelson D. Blank et al., Commercial Arbitration in Alternate Dispute Resolution in Florida 3-1, 3-5 to 3-7 (2d ed.1995) (discussing the various statutes and rules applicable to arbitration in Florida). But regardless of whether arbitration is conducted subject to the FAC, the FAA, or the FIAA, a party's ability to take depositions and to propound discovery requests is generally much more limited in arbitration than it is under the Florida or the federal civil rules. See Rintin Corp., 374 F.Supp.2d at 1170 ("[D]iscovery is not guaranteed in arbitration and arbitrators have broad discretion as to grant or deny the ability to obtain discovery.") (citing Fernandez v. Clear Channel Broad., Inc., 268 F. Supp. 2d 1365, 1368 (S.D.Fla.2003)); see also Stanton v. Paine Webber Jackson & Curtis, Inc., 685 F. Supp. 1241, 1242 (S.D.Fla.1988) (concluding that under the FAA, the arbitrators may order and conduct such discovery as they find necessary). See generally Blank, supra, at 3-8, 3-19 to 3-20 (discussing the limited availability of discovery in commercial arbitration proceedings); W. Scott Simpson & Omer Kesikli, The Contours of Arbitration Discovery, 67 Ala. Law. 280 (2006) (discussing the scope of *693 discovery in arbitration and related proceedings). For example, the parties' arbitration agreement may impose limitations on the right to take depositions and to conduct discovery. See, e.g., Fernandez v. Clear Channel Broad., 268 F. Supp. 2d 1365, 1368 (S.D.Fla.2003) (quoting a section regarding discovery from an arbitration agreement that limited the parties to three depositions unless the arbitrator, on a showing of good cause, approved additional depositions, and that required all discovery to be concluded within forty-five days from the date the arbitrator is informed of his or her selection). In addition, parties frequently agree that any arbitration proceedings will be governed by rules prepared by various private organizations. See Blank, supra, at 3-5 to 3-7; see, e.g., Kotch v. Clear Channel Broad., Inc., No. 03-61951CIVALTONAGA, 17 Fla. L. Weekly Fed. D401, 2004 WL 483502 (S.D.Fla. Mar. 8, 2004) (compelling arbitration under an agreement providing that arbitration would be governed by the Employment Dispute Resolution Rules of the American Arbitration Association).
"Although [the available discovery] procedures might not be as extensive as in the federal courts, by agreeing to arbitrate, a party `trades the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration.'" Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 31, 111 S. Ct. 1647, 114 L. Ed. 2d 26 (1991) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S. Ct. 3346, 87 L. Ed. 2d 444 (1985)). In view of the marked differences concerning the availability of depositions and discovery in arbitration and litigation, the second reason offered by the Merrill Lynch majority equating the availability of depositions in both arbitration proceedings and judicial proceedings is also unsound.
(3) The existing precedent. The Merrill Lynch majority bolstered its legal conclusion by noting that it had "found no case law which would require a denial of appellees' right to arbitration based on their participation in discovery." Merrill Lynch, 791 So.2d at 26. However, in a series of cases decided before the Merrill Lynch opinion issued, the Third District had held that a party's participation in discovery was sufficient to operate as a waiver of the right to arbitration. See Preferred Mut. Ins. Co. v. Matrix Constr. Corp., 662 So. 2d 432, 432 (Fla. 3d DCA 1995); Coral 97 Assocs., Ltd. v. Chino Elec., Inc., 501 So. 2d 69, 70-71 (Fla. 3d DCA 1987); Rolls v. Bliss & Nyitray, Inc., 408 So. 2d 229, 237-38 (Fla. 3d DCA 1981), disapproval on other grounds recognized by La Pesca Grande Charters, Inc. v. Moran, 704 So. 2d 710, 713-14 (Fla. 5th DCA 1998); Winter v. Arvida Corp., 404 So. 2d 829, 830 (Fla. 3d DCA 1981). Thus existing precedent did not support the legal proposition adopted by the Merrill Lynch majority in 2001 when that case was decided.
Since Merrill Lynch was decided, the Third District has adhered to its view of the matter, Estate of Orlanis, 971 So.2d at 812-13, and the Fifth District has adopted the same position as the Third District, Olson Electric, 987 So.2d at 179. Furthermore, in a relatively recent decision, this court without citing Merrill Lynch relied on a party's participation in discovery as one of the factors supporting the conclusion that the party had waived its right to arbitration by engaging in actions inconsistent with the intent to arbitrate the opposing party's claim. See Mora, 913 So.2d at 33-34. Thus Florida case law on this question subsequent to Merrill Lynch has been consistent with the Third District's position and the view proposed by Judge *694 Parker in his dissenting opinion.[7]
To summarize, we conclude that the reasons offered by the Merrill Lynch majority for concluding that participation in discovery related to the merits of pending litigation is not inconsistent with the intent to arbitrate were not well founded. Furthermore, the conclusion reached by the Merrill Lynch majority is contrary to the case law in the Third District and the Fifth District. Accordingly, we now hold that a party's participation in discovery related to the merits of pending litigation is activity that is generally inconsistent with arbitration. Such activity considered under the totality of the circumstances will generally be sufficient to support a finding of a waiver of a party's right to arbitration. We recede from Merrill Lynch to the extent that it is inconsistent with the rule that we now adopt.
G. The Application of the Rule that We Adopt Today to the Facts of This Case
Consistent with the rule that we adopt today, we hold that competent, substantial evidence supports the circuit court's conclusion that Green Tree waived its claimed right to arbitrate Mrs. McLeod's claims by participating in discovery related to the merits of the pending litigation. Green Tree's request to produce asked Mrs. McLeod to produce twenty-eight categories of documents related to the merits of her pending claims. Green Tree's three separate sets of interrogatories propounded a total of forty-five questions not including subparts to be answered under oath by Mrs. McLeod. All of these interrogatories pertained to the merits of her claims. As the circuit court noted, the request to produce and the interrogatories were not promptly withdrawn but remained pending for several months. Later, Green Tree filed a motion to compel discovery responses and scheduled a hearing on the motion. The circuit court could properly conclude that this substantial activity by Green Tree was sufficient to cause a waiver of the arbitration right that Green Tree had previously asserted. See Klosters Rederi A/S, 280 So.2d at 681. As another court has written in a similar context, "[t]he courtroom may not be used as a convenient vestibule to the arbitration hall so as to allow a party to create his own unique structure combining litigation and arbitration." De Sapio v. Kohlmeyer, 35 N.Y.2d 402, 362 N.Y.S.2d 843, 321 N.E.2d 770, 773 (1974). Having waived its right to arbitration by propounding discovery related to the merits of the case, Green Tree could not reclaim that right by withdrawing its discovery requests and its motion to compel. See Estate of Williams, 923 So.2d at 617; Bared & Co., 610 So.2d at 3.
Finally, we consider whether the application of the rule that we adopt today to the facts of this case is fundamentally unfair to Green Tree. The dispositive factor on this issue is the statement made by Green Tree's counsel at the hearing on its renewed motion to stay discovery. At the hearing on this motion held before Green Tree had propounded its merits-related discovery requests Green Tree's counsel acknowledged that its participation in any discovery related to the merits of the case would result in a waiver of its right to arbitration. Thus Green Tree did not rely to its detriment on our Merrill Lynch decision in serving its merits-related discovery requests on Mrs. McLeod. On the contrary, Green Tree's understanding of the law on this subject was in accord with the rule that we adopt today. Accordingly, *695 the application of this rule to Green Tree's conduct in this case is not unfair to Green Tree. Cf. Brackenridge v. Ametek, Inc., 517 So. 2d 667, 668-69 (Fla.1987) (stating the general rule "that a decision of a court of last resort which overrules a prior decision is retrospective as well as prospective in its operation unless declared by the opinion to have prospective effect only" and finding that a litigant did not fall within the exception to the general rule where he did not act in reliance on a prior decision that had been overruled).
IV. CONCLUSION
For the foregoing reasons, we hold that the circuit court did not err in ruling that Green Tree waived its right to arbitration by participating in discovery related to the merits of the case. Accordingly, we affirm the circuit court's order denying Green Tree's motion to stay and compel arbitration.
Affirmed.
NORTHCUTT, C.J., and ALTENBERND, FULMER, WHATLEY, CASANUEVA, DAVIS, SILBERMAN, KELLY, VILLANTI, LaROSE, KHOUZAM, and CRENSHAW, JJ., Concur.
NOTES
[1] We have jurisdiction in accordance with Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv).
[2] Our summary of the facts in Merrill Lynch is taken from the detailed recital of the facts of the case contained in the dissenting opinion. The majority opinion did not include a statement of the facts of the case.
[3] In an apparent scrivener's error, the majority referred to "appellants' acts" when they obviously meant to say "appellees' acts."
[4] The two cases cited are Nichols v. Lohr, 776 So. 2d 366 (Fla. 5th DCA 2001), and Levine v. Kaplan, 687 So. 2d 863 (Fla. 5th DCA 1997), disapproved of by Metropolitan Dade County v. Hall, 784 So. 2d 1087 (Fla.2001).
[5] The FIAA was designed to provide for the arbitration of disputes arising out of international relationships. See 684.02(1). See generally Robert M. Jarvis, International Arbitration, in Alternate Dispute Resolution in Florida 7-1, 7-5 to 7-6 (2d ed.1995). Section 684.03 sets forth the criteria for determining the types of disputes that are subject to the FIAA. See Jarvis, supra, at 7-6 to 7-7. These criteria limit the claims subject to the FIAA to those having some international connection. See § 684.03(1).
[6] In this case, the agreement between Mr. McLeod and Green Tree's predecessor in interest provided that it "is made pursuant to a transaction in interstate commerce and shall be governed by the Federal Arbitration Act at 9 U.S.C. Section 1."
[7] This proposition is subject to the uncertainty previously noted in section III(C) of this opinion concerning the position of the First District and the Fourth District on this issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625639/ | 689 S.W.2d 29 (1985)
Rob MARTIN and Phoenix Properties, Appellants,
v.
Thomas BEEHAN; Covington Board of Adjustment; City of Covington; Covington Board of Commissioners; Fred N. Donsback, Jr.; and Kenton County Municipal Planning and Zoning Commission, Appellees.
Court of Appeals of Kentucky.
January 18, 1985.
As Modified on Denial of Rehearing March 22, 1985.
Discretionary Review Denied and Opinion Ordered Published by Supreme Court May 15, 1985.
*30 Otto Daniel Wolff, Paxton & Seasongood, Cincinnati, Ohio, for appellants.
Jeffrey J. Harmon, Manley, Jordan & Fischer, Cincinnati, Ohio, Arnold Simpson, Charles Wagner, Covington, Frank G. Ware, Florence, for appellees.
Before LESTER, MILLER and WILHOIT, JJ.
MILLER, Judge.
This dispute involves the question of "abandonment" of a nonconforming use existing under the zoning ordinance applicable to the City of Covington, Kentucky.[1] Nonconforming use is authorized (grandfathered) under KRS 100.253 which provides, in part, as follows:
"EXISTING NONCONFORMING USE, CONTINUANCE CHANGE EFFECT OF NONCONFORMING USE OF TEN YEARS' DURATION APPLICATION.
(1) The lawful use of a building or premises, existing at the time of the adoption of any zoning regulations affecting it may be continued, although such use does not conform to the provisions of such regulations, except as otherwise provided herein.
(2) The board of adjustments shall not allow the enlargement or extension of a nonconforming use beyond the scope and area of its operation at the time the regulation which makes its use nonconforming was adopted, nor shall the board permit a change from one (1) nonconforming use to another unless the new nonconforming use is in the same or a more restrictive classification. . . .
The Covington Zoning Code, § 3.06, provides, in part, as follows:
Where a structure is non-conforming or where the use of a structure of of [sic] land has non-conforming status, such status shall be forfeited under any of the following circumstances:
. . . .
(d) If a non-conforming use of a structure or of a structure and land in combination is discontinued or abandoned for twelve consecutive months or for twenty-four months during any four year period; (Note: as used herein the word "discontinued" means that the owner or responsible party for the use of the property cannot demonstrate that he had clear intent to continue using the property for the non-conforming purpose and that he augmented that intent by making every reasonable effort to continue to have the property so used. A demonstration of intent would be reasonable, continuous effort to have the property rented or sold for the non-conforming purpose.)
. . . .
(f) Once forfeited, non-conformance may not again be used as a defense against prosecution for violation of the provisions of the zoning ordinance."
Section 3.00a of the Code provides:
However, it is the intent of this Ordinance to permit these non-conformities to continue in their present condition, but not to encourage their survival.
*31 Appellants contracted to purchase the Browning Hotel property located in a residential (R-3) area of the City of Covington. The hotel was operated as a nonconforming use under KRS 100.253. Appellants applied to the Covington Board of Adjustment (board) for a change-of-nonconforming-use permit for the purpose of converting the property into an office complex a use which did not conform to R-3 zoning. Appellee, Thomas Beehan, an area resident, resisted the issuance of the permit claiming "abandonment" of the nonconforming use. A nonconforming use once abandoned cannot be revived. However, a finding that a nonconforming use has not been abandoned entitles an applicant to routine issuance of a permit. The central issue was simply one of abandonment. The board heard evidence and determined the nonconforming use had not been abandoned. A change-of-use permit was therefore issued. The board made the following finding:
. . . the use of the building as a hotel while discontinued 10-12-15 years has not been abdoned (sic) in the (sic) since that afforts (sic) have been made by the owner to sell the building as a hotel. (Minutes, March 9, 1983, attached to Aff. of Jeffrey Harmon submitting Record of Board of Adjustment.)
The Kenton Circuit Court reversed the order of the board, thereby precipitating this appeal. We are squarely faced with the question of whether the action of the board in granting the permit was arbitrary as viewed in light of the party bearing the burden of proof. We are not reviewing the circuit court's action under the clearly erroneous rule of CR 52.01. Rather, we are reviewing, as did the circuit court, the record of the board to determine arbitrariness, if any. See Board of Education of Ashland School District v. Chattin, Ky., 376 S.W.2d 693 (1964). At the outset, we observe that a nonconforming use is a property right constitutionally protected. See Darlington v. Board of Councilmen, 282 Ky. 778, 140 S.W.2d 392 (1940). It can, however, be abandoned. In each case, the abandonment rests upon intent. While intent may be inferred from a long period of disuse [Cf. Holloway Ready Mix Company v. Monfort, Ky., 474 S.W.2d 80 (1968) ten year disuse of a rock quarry], the general rule is that mere discontinuance of the nonconforming use does not in itself constitute abandonment. The circumstances surrounding each case must be considered. Cf. Smith v. Howard, Ky., 407 S.W.2d 139 (1966), and City of Bowling Green v. Miller, Ky., 335 S.W.2d 893, 87 A.L.R. 2d 1 (1960). See generally 82 Am. Jur.2d Zoning and Planning § 214 et seq. (1976), and Annot., 56 A.L.R. 3d 14 (1974). Our analysis of the cases in this jurisdiction leads us to conclude that discontinuance of use is but a single factor, albeit a strong one, to be considered in determining intent to abandon.
One asserting abandonment bears the overall burden of proof upon that fact. See Smith v. Board of Zoning Appeals of the City of Scranton, 74 Pa.Cmwlth. 405, 459 A.2d 1350 (1983); 82 Am.Jur.2d Zoning and Planning § 218 (1976). We interpret the discontinuance-time limitation provision of the ordinance to create a presumption of abandonment of a nonconforming use after expiration of the time stated in Section (d). See of general application, 82 Am.Jur.2d Zoning and Planning §§ 219 and 220 (1976). This presumption will carry the burden of proof unless rebutted by evidence. If it is rebutted by evidence, the one asserting abandonment is returned to his overall burden of persuasion. He must persuade the factfinders to find facts in his favor based upon substantial evidence. Actually, when the presumption of abandonment is rebutted by evidence, the discontinuance-time limitation provision of Section (d) of the ordinance relates only to the overall question of intent to abandon the use.
In the case sub judice, Thomas Beehan, who asserted abandonment of the use, bore the burden of proof. He was aided by the presumption created by the *32 ordinance. Further, he was supported, to some extent, by the general bias against continuation of a nonconforming use. See Attorney General v. Johnson, Ky., 355 S.W.2d 305 (1962). However, his presumption vanished with the introduction of evidence that although the property had been in disuse as a hotel for many years, it nevertheless had been offered for sale as a nonconforming use. The record indicates the offering of sale was not a "continuous effort," as contemplated in Section (d). Of course, the sale was unsuccessful, but the offering of the property for sale, we believe, was sufficient to rebut the presumption of abandonment arising under the ordinance. Thus, Beehan was left with the overall burden of persuasion upon the record. The board decided that he failed in this burden. The circuit reversed, holding that Beehan had carried his burden of proof, hence the decision of the board was arbitrary.
Upon reviewing this matter, we conclude that the record is void of any significant manifestation of intent on the part of the owners to continue the nonconforming use of the Browning Hotel either as a hotel or an acceptable substituted use. There is no rationale as to the long period of disuse of the property as a hotel or otherwise. There is no inference of financial inability or governmental impediment. It can only be concluded that the owners of the property, who did not appear in these proceedings, deemed it wiser to sell the property rather than continue the use. There was, during the more than ten years of disuse, the attempt to sell the property. However, we apprehend this to have as clearly manifested an attempt to abandon the use as to perpetuate it. There was no assurance that any would-be purchaser would continue the nonconforming use of the property. Further, we are committed to the proposition that intent must be born out by a showing of acts and not merely a plan in mind. See Attorney General v. Johnson, supra. The record as a whole, in our view, compelled a finding of abandonment; therefore, the circuit court was correct in entering judgment in favor of appellees.
For the foregoing reasons, the judgment of the Kenton Circuit Court is affirmed.
All concur.
NOTES
[1] Although we do not consider the validity of the Covington ordinance essential to the disposition of the case at hand, we do wish to point out that the discontinuance-time limitation provision in zoning ordinances is in derogation of the common law and is to be strictly construed. See Smith v. Howard, Ky., 407 S.W.2d 139 (1966). Where the termination provision of the ordinance does not bear a reasonable relationship to the purpose of terminating the nonconforming use, the provision will not be given effect. See City of Middlesboro Planning Commission v. Howard, Ky., 551 S.W.2d 556 (1977). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625456/ | 464 So. 2d 656 (1985)
Angelo NOTARFONZO, Appellant,
v.
Denise KLINE, Appellee.
No. 84-1668.
District Court of Appeal of Florida, Fourth District.
March 6, 1985.
*657 William S. Friedlander of Friedlander, Friedlander, Reizes & Joch, P.C., Ithaca, New York, for appellant.
David A. Cairns of Samuel A. Block, P.A., Vero Beach, for appellee.
DOWNEY, Judge.
Appellant, Angelo Notarfonzo, seeks review of a non-final order finding that the Nineteenth Judicial Circuit Court in and for Indian River County had jurisdiction to determine the custody of the minor child of the parties and that appellant was required to pay temporary child support to appellee.
Appellee commenced the litigation by filing a complaint pursuant to the Chapter 742, Florida paternity statute. In said complaint appellee requested a determination of paternity and an award of custody and child support. Appellant responded by filing a motion to dismiss based on lack of subject matter jurisdiction, contending that jurisdiction was properly in New York State under the Uniform Child Custody Jurisdiction Act. In addition, appellant filed an answer and counter-petition wherein he admitted paternity and sought custody of the child. On February 3, 1984, the trial court entered an order finding appellant to be the natural father, allowing appellee to file an amended complaint, and retaining jurisdiction to determine support for the child. Thereafter, appellee filed an amended complaint setting forth in more detail the facts surrounding the child's residence over the past several years and other facts pertaining to custody. Appellant once again moved to dismiss for lack of subject matter jurisdiction and filed an answer and counter-petition for custody.
On July 3, 1984, the trial court entered the order under consideration here denying appellant's motion to dismiss on the ground that the complaint was filed under Chapter 742, Florida Statutes, which provides for a determination of paternity, support, and custody. Appellant was ordered therein to pay temporary support for the child based upon the determination of paternity in the prior February 3, 1984, order.
Appellant contends the trial court erred in denying his motion to dismiss for lack of jurisdiction because under the Uniform Child Custody Jurisdiction Act, the Florida court had no jurisdiction. Appellee responds, and the trial court held, that the Uniform Act is not applicable because this proceeding is authorized by a specific chapter of the Florida Statutes and is not controlled by the Uniform Act.
We agree with appellee and the trial court. As the Florida Supreme Court held in Kendrick v. Everheart, 390 So. 2d 53, 56 (Fla. 1980):
[T]he purpose of the paternity statute, chapter 742, is to afford a basis on which a court may order child support from a man adjudicated to be the father of the illegitimate child... . The paternity statute was enacted in abrogation of the common law in order to convert the father's moral obligation to provide child support to a legal obligation and in order to relieve the public of the need to provide support for the child... . The determination of paternity is made only incidentally to enable achievement of the statute's purposes. [Citations omitted].
*658 A further purpose of the statute is to determine any question regarding custody of the child. Hornsby v. Newman, 444 So. 2d 90 (Fla. 4th DCA 1984).
Although the major thrust of appellant's argument had to do with subject matter jurisdiction as affected by the Uniform Act, appellant also contends in his brief that the court lacks personal jurisdiction because service of process was inadequate. Appellee purported to serve appellant in New York under the authority of section 48.193, Florida Statutes (1983), which, in our judgment, was inadequate service because appellant did not fit into any of the categories authorizing use of such service. However, we further hold that appellant waived the objection to personal jurisdiction by his failure to properly raise that question in the first step taken by him in this case. Consolidated Aluminum Corporation v. Weinroth, 422 So. 2d 330 (Fla. 5th DCA 1982). Appellant based his motion to dismiss on lack of subject matter jurisdiction and this waived the argument here.
In view of the foregoing we affirm the order appealed from.
LETTS and GLICKSTEIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625474/ | 464 So. 2d 869 (1985)
STATE of Louisiana
v.
Paul A. BLUNT.
No. KA 2369.
Court of Appeal of Louisiana, Fourth Circuit.
February 12, 1985.
*870 William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Beryl M. McSmith, Julia Coley, Asst. Dist. Attys., New Orleans, for the State.
Elizabeth Cole, Supervising Atty., New Orleans, for defendant.
Before REDMANN, C.J., and GULOTTA and WILLIAMS, JJ.
REDMANN, Chief Judge.
Defendant's appeal from his sentence for second offense simple robbery, La.R.S. 14:65 and 15:529.1, complains that he was improperly sentenced as a second offender and that, in any case, his ten-year sentence was excessive.
We find the ten-year sentence not unconstitutionally excessive. Defense counsel argues defendant is not among the worst of offenders and therefore does not deserve so long a sentence. The maximum under R.S. 15:529.1 is 14 years, and the minimum is two and a third years. Thus ten years is closer to the middle of that range, eight and a sixth years, than to the maximum of 14 years. The trial judge noted that defendant committed this offense just six months after he was placed on probation for the similar offense of purse snatching; that he joined with four other young men to take necklaces by force from a young woman (noting that the purse snatching was from a woman). The trial judge expressly considered individually all of the statutory factors affecting sentencing, and we cannot say that the medium-length ten-year sentence he imposed was excessive.
We do respond to defendant's complaint that, in the course of explaining his sentence, the judge recited an untrue statement alleged to have been made by defendant on the day of his conviction to a deputy sheriff assigned to the court. The judge stated that the deputy told him that defendant said that he didn't take the victim's necklaces because, had he done so, he "would have beat her ass," and that he "`was coming back like [his] brother,' who is supposedly serving in Angola [penitentiary] right now for some serious crimes." When defense counsel interjected that defendant "wants to say to the court that he didn't make [that] statement," the judge put the deputy on the stand and the deputy testified that defendant did make that statement. In brief defendant asserts he does not even have a brother, and that the trial judge (after sentencing) declined to *871 allow defendant's mother to so testify. We find no reversible error there. The trial judge recited that statement by defendant not for its truth but for its revelation of defendant's attitude. It is not material that defendant has no brother.
We must remand, however, for another hearing on the sentencing as a second offender. At the sentencing hearing the state did not introduce a transcript of the earlier plea of guilty. It introduced a form signed by defendant and initialed at every space for indicating understanding of each right ceded by his plea. It also introduced what claims to be but on its face is not a minute entry of what occurred at the time of the plea.
That "minute entry" on its face is not a true minute entry because it is a pre-fabricated, fill-in-the-blanks form (with blanks only for the defendant's and his lawyer's names, and h's intended to be but here not completed to read "his" or "her"). That "minute entry" is a count of chickens before they hatch; its pre-fabrication makes it no more a "contemporaneous record," as required by State v. Lewis, 367 So. 2d 1155 (La.1979), than was "Dewey Defeats Truman."
The Louisiana supreme court has held, in Lewis and State v. Holden, 375 So. 2d 1372 (La.1979), and repeated in State v. Bolton, 379 So. 2d 722 (La.1979), that a guilty-plea, rights-waiver form executed by defendant, although complete in every detail, is insufficient without minutes or transcript of a colloquy between judge and defendant showing the knowing and voluntary waiver required by Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).
We therefore must remand for another sentencing hearing on the second offender charge at which the state may introduce the transcript of the Boykin colloquy at the earlier guilty plea or contemporaneously-prepared minutes thereof; State v. Holden, above.
Conditionally affirmed; remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625455/ | STATE OF LOUISIANA
v.
BRUCE D. DIAL
No. 09-446.
Court of Appeals of Louisiana, Third Circuit.
December 9, 2009.
Not Designated for Publication
ASA A. SKINNER, District Attorney Thirtieth Judicial District Court, TERRY WAYNE LAMBRIGHT, Assistant District Attorney Thirtieth Judicial District Court, Counsel for Plaintiff/Appellee State of Louisiana.
JAMES EDWARD BEAL, Louisiana Appellate Project, Counsel for Defendant/Appellant Bruce D. Dial.
Court composed of THIBODEAUX, Chief Judge, DECUIR, and EZELL, Judges.
ULYSSES GENE THIBODEAUX, Chief Judge
Defendant, Bruce D. Dial, pleaded guilty to five counts of simple burglary. The trial judge sentenced him to serve concurrent twelve year terms at hard labor on each count, but consecutive to any other sentence he may be serving.
We affirm.
ISSUES
We shall consider whether:
1. the trial court erroneously advised Defendant that his sentence was not subject to diminution for good behavior pursuant to La.R.S. 15:571.3; and,
2. the trial court improperly imposed an excessive sentence on the basis of an incomplete pre-sentence investigation report.
LAW AND DISCUSSION
Diminution of Sentence
Defendant complains the trial court had no basis for denying him diminution of sentence. He asserts that if accompanied by a denial of "good time," his sentences are excessive and not supported by the record. Defendant prays for imposition of concurrent sentences with the benefit of diminution of sentence for "good behavior."
At sentencing, the trial court stated, "[p]ursuant to Code of Criminal Procedure Article 894.1, you are advised that your sentence is not subject to diminution for good behavior pursuant to Revised Statute 15:571.3."
In State v. Narcisse, 97-3161, p. 1 (La. 6/26/98), 714 So. 2d 698, 699, the Louisiana Supreme Court explained:
[A] trial judge lacks authority under La.R.S. 15:5[71.3] (C) to deny a defendant eligibility for good time credits against his sentence, because that statute is "directed to the Department of Corrections exclusively." State ex rel. Simmons v. Stalder, 93-1852 (La. 1/26/96), 666 So.2d 661.. . . When the sentencing court is of the opinion that a denial of diminution of sentence is warranted under the specific circumstances of the case, the trial judge's discretion should be exercised under La.C.Cr.P. 890.1(B).
In this case, the trial court merely advised Defendant pursuant to La.Code Crim.P. art. 894.1 he was ineligible for diminution of sentence. Whether or not the advisement was correct has no effect since the authority lies with the Department of Corrections. Id.
Accordingly, this assignment of error has no merit.
Excessiveness of the Sentence
Defendant asserts his sentences are excessive and not supported by the record. Defendant prays for imposition of concurrent sentences.
Defendant explains that the trial court did not have a complete or proper PSI as there were numerous problems and/or omissions with the PSI which resulted in the imposition of a harsher sentence. At the sentencing hearing, Defendant's attorney stated he reviewed the PSI. There was no objection or attempt to add to the report. Defendant states he did not object out of fear and shock. Nevertheless, in his motion to reconsider sentence filed in the trial court, the only basis on which Defendant complained was that "under the new Pre-Sentence Investigation process the Court may have been unaware that Defendant was already serving a ten (10) year sentence from Beauregard Parish consecutive to a two (2) year probation revocation." However, this assertion is incorrect. The PSI included a sentence imposed in Beauregard Parish on December 4, 2008, of ten years at hard labor for simple burglary and two years at hard labor for simple criminal damage to property with the sentences to run concurrently to each other, but consecutively to any other sentence.
In State v. Davis, 06-922 (La.App. 3 Cir. 12/29/06), 947 So. 2d 201, this court held, in pertinent part:
According to La.Code Crim.P. art. 881.1, failure to make or file a motion to reconsider sentence precludes a defendant from raising, on appeal, any objection to the sentence. When the record does not indicate that any objection was made regarding sentencing, the defendant is precluded from appealing his sentence. State v. Williams, 01-998 (La.App. 3 Cir. 2/6/02), 815 So. 2d 908, writ denied, 02-578 (La. 1/31/03), 836 So. 2d 59.
Although Defendant's sentencing claim is barred pursuant to La.Code Crim.P. art. 881.1, we will review Defendant's sentence for bare excessiveness in the interest of justice. State v. Graves, 01-156 (La.App. 3 Cir. 10/3/01), 798 So. 2d 1090, writ denied, 02-29 (La. 10/14/02), 827 So. 2d 420. This court has reviewed claims regarding the consecutive nature of sentences using a bare claim of excessiveness analysis. See State v. Vollm, 04-837 (La.App. 3 Cir 11/10/04), 887 So. 2d 664; State v. Day, 05-287 (La.App. 3 Cir 11/2/05), 915 So. 2d 950.
This court has set forth the following standard to be used in reviewing excessive sentence claims:
La. Const. art. I, § 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So. 2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So. 2d 124, writ denied, 00-0165 (La. 6/30/00); 765 So. 2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La. 5/31/96); 674 So. 2d 957, cert. denied, 519 U.S. 1043, 117 S. Ct. 615, 136 L. Ed. 2d 539 (1996).
State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So. 2d 1035, 1042-43, writ denied, 01-838 (La. 2/1/02), 808 So. 2d 331.
Id. at 202-03. See, e.g., State v. Baker, 08-54 (La.App. 3 Cir. 5/7/08), 986 So. 2d 682.
Since the only argument in Defendant's motion to reconsider sentence involved whether or not the trial court was aware of the Beauregard Parish sentence, this court is relegated to review the present claim of consecutive sentences under a bare claim of excessiveness analysis.
Louisiana Code of Criminal Procedure Article 883 provides:
If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.
In State v. Rivers, 446 So. 2d 913 (La.App. 1 Cir. 1984), the defendant was convicted of armed robbery and aggravated kidnapping. He was sentenced to ninety-nine years on the armed robbery charge and life imprisonment on the aggravated kidnapping charge to be served consecutively to each other and consecutively to a sentence of life imprisonment which the defendant was serving for a conviction of first degree murder. On appeal, the defendant argued the imposition of consecutive sentences violated his constitutional right against excessive punishment. The court found the trial court did not abuse its discretion in imposing consecutive sentences.
In State v. Russell, 607 So. 2d 689 (La.App. 4 Cir. 1992), writ denied, 94-318 (La. 6/21/96), 675 So. 2d 1069, the defendant complained the trial court erred in ordering his sentence to run consecutively to his parole time for a prior offense. The court found the claim lacked merit. In setting forth one of the grounds for denying the claim, the court explained:
The trial court was well within its discretion in making the sentences under the present offense consecutive to the defendant's parole obligation under the prior offense. Code of Criminal Procedure article 883 allows for the imposition of consecutive sentences when the convictions are for offenses which arise from separate occurrences. In State v. Pruitt, 474 So. 2d 491 (La.App. 4th Cir.1985), this Court affirmed the imposition of consecutive sentences for two armed robberies which occurred six weeks apart.
The defendant in State v. Johnson, 489 So. 2d 301 (La.App. 4th Cir. 1986) was convicted of armed robbery and found to be a multiple offender. He was sentenced to one hundred ninety-eight years at hard labor without benefit of probation, parole, or suspension of sentence. The sentence was made consecutive with a sentence imposed in an earlier conviction. This Court affirmed the imposition of consecutive sentences.
Id. at 694.
The trial court did not abuse its discretion in ordering the present sentence to run consecutively to any other sentence he was serving. The sentence which Defendant was serving was imposed in a different parish, for a separate conviction, by a different judge. Additionally, the trial judge in Beauregard Parish specifically ordered the sentence to run consecutively to any other sentence Defendant was serving.
In State v. Semien, 06-841 (La.App. 3 Cir. 1/31/07), 948 So. 2d 1189, writ denied, 07-448 (La. 10/12/07), 965 So. 2d 397, the court explained:
However, "[m]aximum sentences are reserved for the most serious violations and the worst offenders." State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So. 2d 217, 225. The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La. 5/31/96), 674 So. 2d 957, cert. denied, 519 U.S. 1043, 117 S. Ct. 615, 136 L. Ed. 2d 539 (1996).
The fifth circuit, in [State v.] Lisotta, [98-648 (La.App. 5 Cir. 12/16/98),] 726 So.2d [57] at 58, stated that the reviewing court should consider three factors in reviewing the trial court's sentencing discretion:
1. The nature of the crime,
2. The nature and background of the offender, and
3. The sentence imposed for similar crimes by the same court and other courts.
Id. at 1197 (citation omitted).
Defendant was sentenced to the maximum term of twelve years at hard labor on each count and a $2,000.00 fine.
At the sentencing hearing, the trial court set forth the following reasons for imposing the sentences:
I've considered all the factors of Code of Criminal Procedure Article 894.1. In this case there was economic harm to the victims and it was considerable. There were no substantial grounds to justify or excuse the Defendant's conduct. The Defendant was not provoked by the victims or any other. The Defendant is about forty years of age. He is not married, he has five children. He appears to be in good health. I have nothing as far as any information about any past employment record. He has an eighth grade education. I have no information about any history of any drug or alcohol abuse other than he did receive some treatment in 1999. He does have a somewhat lengthy past criminal record. He has had five prior burglaries and is considered to be a third offender class. It does not appear that probationary treatment would be something that the Defendant would likely respond to. There is an undue risk that during a period of suspension the Defendant might commit another crime and the Defendant does appear to be in need of correctional treatment. Any lesser sentence given would deprecate the seriousness of the Defendant's offenses.
In this case, Defendant had numerous prior convictions: burglary in Texas in 2001; illegal possession of stolen things and simple burglary in Beauregard Parish in 2004; five counts of simple burglary in Vernon Parish in 2008; and, simple burglary and simple criminal damage to property in Beauregard Parish in 2008. Additionally, the State dismissed twenty-one charges in exchange for Defendant pleading guilty to the five counts of simple burglary. Further, the trial court ordered the sentences on the five counts to run concurrently to each other. Given this lengthy criminal history, the trial court did not abuse his discretion in imposing the twelve year sentences.
Accordingly, this assignment of error is meritless.
CONCLUSION
Based upon the foregoing, Defendant's conviction and sentence are affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625483/ | 25 So. 3d 889 (2009)
Sandra DOWLES, Plaintiff-Appellee
v.
CONAGRA, INC., Defendant-Appellant.
No. 44,772-CA.
Court of Appeal of Louisiana, Second Circuit.
October 28, 2009.
*890 Hayes, Harkey, Smith & Cascio, by John B. Saye, for Defendant-Appellant ConAgra, Inc.
Dumas & Associates Law Firm, LLC, by Walter C. Dumas, for Defendant-Appellant Johnnie A. Jones.
O'Neal Law Offices, by F. Hodge O'Neal, III, Laura L. Folk, for Plaintiff-Appellee, Sandra Dowles.
Before WILLIAMS, GASKINS and LOLLEY, JJ.
GASKINS, J.
This matter arises from an attorney fee dispute following a judgment granting damages of $20,000 and attorney fees of $5,000 to the plaintiff, Sandra Dowles, in her suit for wrongful discharge against ConAgra, Inc. (now Pilgrim's Pride Corporation). The plaintiff had a contingent fee contract with her former attorney, Johnnie A. Jones, Sr., for 40 percent of her recovery. The present dispute arose when Mr. Jones sought to keep the $5,000 attorney fee award as well as 40 percent of the plaintiff's damages. To resolve the dispute, the trial court added the attorney fee award to the damage award and ruled that Mr. Jones was entitled to 40 percent of that amount. Mr. Jones appealed and Ms. Dowles answered the appeal. For the following reasons, we reverse the trial court judgment.
FACTS
Ms. Dowles sued ConAgra for wrongful discharge, claiming that she was fired for exercising her rights under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. Ms. Dowles had been employed with ConAgra since 1997. She had a son with asthma and frequently took time off under the FMLA to care for him. On February 6 or 7, 2002, Ms. Dowles submitted an excuse from the child's doctor stating that the child had the flu and Ms. Dowles needed to be off work to care for him from February 1 to February 7, 2008.
According to ConAgra, the excuse was altered to extend the excused absence period by one day to February 8, 2002. Ms. Dowles denied altering the excuse and produced a copy of the unaltered excuse. She claimed that she made the copy at work during the course of submitting the excuse to ConAgra. According to ConAgra officials, the alteration on the excuse was observed only after Ms. Dowles made the copy. The doctor's office was contacted and personnel there denied altering the excuse. However, they confirmed that the child was sick on February 8 and stated that an excuse had been written covering the disputed day.
The matter was tried before a jury which rendered a verdict in favor of Ms. Dowles. She was awarded $10,000 in lost wages, benefits, and interest. ConAgra appealed and Ms. Dowles answered the appeal seeking additional damages and reinstatement to her job at ConAgra.
On appeal, this court affirmed the jury's finding that ConAgra wrongfully discharged Ms. Dowles for exercising her rights under the FMLA. We found that, *891 because ConAgra did not act in good faith in discharging Ms. Dowles, she was entitled to "liquidated" or double damages under 29 U.S.C. § 2617. We increased the award to $20,000. We also found that, "Under 29 U.S.C. § 2617(a)(3), the successful plaintiff is entitled to a reasonable attorney fee. Accordingly, we render judgment awarding attorney fees of $5,000."[1]
ConAgra tendered to Mr. Jones two checks, one for $27,237.31, reflecting the damage award plus interest, and one payable only to Mr. Jones for $8,637.70, reflecting the $5,000 attorney fee award, plus interest and costs.
Following the judgment of this court, a dispute arose between Ms. Dowles and Mr. Jones regarding the amount of the attorney fee. Mr. Jones cashed the attorney fee check and also sought to recover 40 percent of the $27,237.31 damage award. Ms. Dowles did not think that Mr. Jones was entitled to 40 percent of her damage award as well as the full attorney fee award of $5,000, plus interest. She refused to endorse the damage award check, the proposed settlement statement and ConAgra's release. On August 11, 2008, Ms. Dowles filed, in proper person, a motion for a hearing seeking "clarity, certification, and request for assistance against past attorney Johnnie A. Jones, Sr. for misconduct." This motion was denied by the trial court due to the form in which it was submitted.
Mr. Jones filed a motion to recover attorney fees and for leave of court to deposit the $27,237.31 damage award into the registry of the court. Mr. Jones then claimed that the issue was whether he was entitled to both the attorney fee awarded by this court and the amount that Ms. Dowles agreed to in the contingent fee contract.
ConAgra filed a rule to show cause why Ms. Dowles and Mr. Jones should not be required to execute a satisfaction of judgment, accepting the money tendered.[2] Ms. Dowles filed a memorandum in opposition to Mr. Jones' motion to recover attorney fees.
Ms. Dowles suggested that either the statutory attorney fee award was the sole amount to be recovered by Mr. Jones or that a setoff was the proper remedy. Under the setoff calculation, she argued that 40 percent of $27,237.31 is $10,894.92. Mr. Jones received $5,000 in attorney fees with $1,803.16 in interest for a total of $6,803.16. Ms. Dowles asserted that this amount should be subtracted from $10,894.92, leaving her owing Mr. Jones $4,091.96.
A hearing was held on this matter on January 8, 2009. The trial court ruled that the attorney fee award was an element of damages awarded to the plaintiff. He added the statutory attorney fee award to the damage award, plus interest on both, and ruled that Mr. Jones was entitled to 40 percent of that amount. A judgment to that effect was signed by the trial court on January 22, 2009. Mr. Jones appealed and Ms. Dowles answered the appeal.
ATTORNEY FEES
Mr. Jones essentially argues on appeal that the trial court inappropriately modified this court's judgment by adding the $5,000, plus interest, in statutory attorney fees to the damage award and then granting him 40 percent of that amount. He *892 contends that, under the contingent fee contract, Ms. Dowles agreed to pay a 40 percent contingent fee and agreed that any award of attorney fees is the sole property of the lawyer, exclusive of any award of the client. He claims that, according to the terms of the contract, he is entitled to the 40 percent contingent fee on Ms. Dowles' award, as well as the $5,000 plus interest awarded as a statutory attorney fee by this court. Mr. Jones also suggests in his brief that this court should award an additional $2,500 in attorney fees along with costs and travel expenses for having to pursue this matter on appeal.
In her answer to the appeal, Ms. Dowles contends it would be an unreasonable attorney fee if Mr. Jones collected 54.5 percent of his client's total award by contracting for 40 percent of "any recovery obtained," and characterizing the client's attorney fee award as "property of the attorney, exclusive of any award to the client." She maintains that if Mr. Jones is allowed to keep the $8,637.70 attorney fees and costs, plus 40 percent of the $27,237.31 damage award and interest, he would recover an attorney fee of $19,532.63 out of a total award of $35,875.01.
She argues in the alternative that this court's award of a "reasonable attorney fee" was fully satisfied by the $8,637.70 received from ConAgra and that she does not owe any additional attorney fees.
Federal Statutory and Jurisprudential Authority
The issue presented is whether the attorney may recover both the 40 percent contingent fee amount and the statutory attorney fee. Based upon federal authority construing federal statutes which allow for the award of attorney fees by a court, we find that Mr. Jones is entitled to recover both the statutory fee and the contingent fee amount.
The plaintiff in the present case brought an action for wrongful discharge under the FMLA. The statute under which attorney fees were awarded in this case is 29 U.S.C. § 2617(a)(3) which provides:
(3) Fees and costs
The court in such an action shall, in addition to any judgment awarded to the plaintiff, allow a reasonable attorney's fee, reasonable expert witness fees, and other costs of the action to be paid by the defendant.
The legislative history of this statute provides that, with the exception of the allowance of expert witness fees, this provision is modeled after 29 U.S.C. § 216(b) of the Fair Labor Standards Act (FLSA), and therefore should be interpreted in the same way as the FLSA. The legislative history further provides that, according to the federal courts, the award of attorney fees under the FLSA is mandatory and unconditional. A court has no discretion to deny fees to a prevailing plaintiff; its discretion extends only to the amount allowed. H.R. Rep. 103-8(1) P.L. 103-3 Family and Medical Leave Act of 1993.
There is some authority indicating that, under the federal statutory scheme, an attorney may contract with his client to receive both the contingent fee amount and the statutory attorney fee award provided in 29 U.S.C. § 2617. In Award of Attorney's Fees and Other Litigation Costs Under Fee-Shifting Provision of Family and Medical Leave Act, 29 U.S.C.A. sec. 2617(a)(3), 197 A.L.R. Fed. 229, it was noted that:
There is some authority suggesting that although a contingency fee agreement does not affect calculation of what constitutes a reasonable lodestar rate, a court may require the plaintiff to pay a contingent fee over and above the amount of statutory fees awarded and assessed against the defendant. This *893 was the case in Quint v. A.E. Staley Mfg. Co., 84 Fed.Appx. 101 (1st Cir. 2003), a case actually awarding fees under the Americans with Disabilities Act (ADA) (42 U.S.C.A. §§ 12101 to 12212), but noting that similar fees would have been awarded had the court chosen to make the award under 29 U.S.C.A. § 2617(a)(3) due to the similar language of the FMLA, in which the court found that the plaintiff's attorney was entitled to the fee specified in the parties' contingent fee agreement, consisting of 25% of the plaintiff's recovery, plus assignment of the statutory fee award. The court noted that the parties had reached this agreement voluntarily, with the attorney specifically agreeing to a lower percentage, rather than his usual 40% of recovery, in exchange for the assignment of statutory fees. The court also held that a second attorney, hired to represent the plaintiff on appeal, was entitled to enforce his fee agreement, calling for 15% of the recovery, plus assignment of the statutory fee award, since the plaintiff had specifically been advised when she terminated her original counsel and hired the second attorney that this would increase the total contingency award imposed on her settlement to 40%, and thereby decrease her net recovery. [Emphasis supplied.][3]
Other federal statutes allowing for the award of attorney fees include 42 U.S.C. § 1988 for a claim of violation of civil rights under 42 U.S.C. § 1983 and 42 U.S.C. § 2000e-5(k) for employment discrimination. These statutes allow for the discretionary rather than mandatory imposition of attorney fees.
The federal Fifth Circuit has considered the exact question presented here, whether an attorney may recover both the amount due under the contingent fee contract and the attorney fee awarded pursuant to a federal statute. In Gobert v. Williams, 323 F.3d 1099 (5th Cir.2003), the plaintiff filed a Title VII suit against her employer, the United States Department of the Interior, alleging job discrimination. She had a contingent fee contract with her attorney entitling him to 35 percent of any amount recovered, excluding court-awarded attorney fees. The agreement also contained a provision similar to the contract in the case sub judice which provided that, "[i]t is specifically understood that all court awarded attorneys [sic] fees are and shall remain the property of the attorney."
The plaintiff ultimately received a judgment of $49,769.11, along with a promotion and attorney fees totaling $36,690 pursuant to 42 U.S.C. § 2000e-5(k).[4] The plaintiff terminated her attorney, who then intervened to enforce the retainer agreement. The district court found that the fee agreement was enforceable and that, in addition to the statutory attorney fee awarded, the attorney was also entitled to $17,419.19, representing 35 percent of the $49,769.11 judgment.
The plaintiff appealed, contending that the attorney was only entitled to the statutory attorney fee. The Fifth Circuit ruled in favor of the attorney, stating that there *894 is nothing in § 2000e-5(k) to regulate what plaintiffs may or may not promise to pay their attorneys if they lose or if they win.[5]
The reasoning in Gobert was based in part upon Venegas v. Mitchell, 495 U.S. 82, 110 S. Ct. 1679, 109 L. Ed. 2d 74 (1990). In Venegas, the United States Supreme Court granted certiorari to consider whether 42 U.S.C. § 1988, which allows a court discretion to award a reasonable attorney fee to the prevailing party in a civil rights case, invalidates contingent fee contracts that would require a prevailing civil rights plaintiff to pay his attorney more than the statutory award against the defendant.[6]
The plaintiff in Venegas signed a contingent fee agreement with his attorney providing that the attorney would represent him for a fee of 40 percent of the gross amount of any recovery. The contract also provided that any fee awarded by the court would be applied, dollar for dollar, to offset the contingent fee. The plaintiff was awarded damages for violation of his civil rights under 42 U.S.C. § 1983. The attorney then filed to recover attorney fees under § 1988 and the court complied. The plaintiff argued that the attorney was entitled to only the attorney fee award made under § 1988.
The Supreme Court affirmed a ruling that § 1988 does not prevent a lawyer from collecting a reasonable fee provided for in a contingent fee contract even if it exceeds the statutory amount. It rejected the argument that § 1988 requires the trial court to invalidate a contingent fee agreement arrived at privately between attorney and client, saying that it had never held that § 1988 constrains the freedom of the civil rights plaintiff to become contractually and personally bound to pay an attorney a percentage of the recovery, if any, even though such a fee is larger than the statutory fee that the defendant must pay to the plaintiff. The Supreme Court stated:
In sum, § 1988 controls what the losing defendant must pay, not what the prevailing plaintiff must pay his lawyer. What a plaintiff may be bound to pay and what an attorney is free to collect under a fee agreement are not necessarily measured by the "reasonable attorney's fee" that a defendant must pay pursuant to a court order. Section 1988 itself does not interfere with the enforceability of a contingent-fee contract.
In Venegas, because the contingent fee contract provided that, under the terms of *895 the contingent fee contract, the statutory attorney fee award would be offset against the contingent fee amount, the court did not reach the issue as to whether an attorney could receive both the statutory award and the contingent fee amount.
In deciding Venegas, the Supreme Court relied in part on the reasoning in Blanchard v. Bergeron, 489 U.S. 87, 109 S. Ct. 939, 103 L. Ed. 2d 67 (1989). In Blanchard, the plaintiff successfully prosecuted a claim for violation of his rights under § 1983 arising from being beaten by a St. Martin Parish sheriff's deputy. The plaintiff received a damage award totaling $10,000 and an attorney fee award under § 1988 for $7,500. On appeal, the attorney fee award was lowered to $4,000 because the plaintiff had a contingent fee contract with his attorney for 40 percent of any damages awarded. The United States Supreme Court reversed that decision, holding that an attorney fee provided for in a contingent fee agreement is not a ceiling on the fees recoverable under § 1988.
Ms. Dowles argues that McCarroll v. Airport Shuttle, Inc., XXXX-XXXX (La.11/28/00), 773 So. 2d 694, provides authority prohibiting the recovery of both the contingent fee contract amount and the statutory fee award. In McCarroll, the Louisiana Supreme Court considered the issue of whether an attorney in a state workers' compensation case is entitled to both the attorney fees awarded to his successful client under La. R.S. 23:1201(F) and the fees that the employee had agreed to pay the attorney for services under the contingent fee contract. The supreme court concluded that the statutory attorney fees, awarded to the employee in cases of arbitrary behavior of the employer or the insurer, were intended to benefit the employee, who would otherwise have to pay the contractual attorney fees out of his or her benefits recovered in the litigation, and were not intended to provide additional fees to the employee's attorney, who received the amount of the statutory attorney fees as full compensation for legal services in the litigation. The court noted that contingent fees are limited in workers' compensation cases by La. R.S. 23:1141(B) because the employee's recovery is low.[7] The court reasoned that the amount of attorney fees awarded is intended to provide full recovery, without statutory limitation, for attorney's services and expenses in connection with the litigation. According to the court, if the attorney were allowed to collect the contractual attorney fees in addition to the full compensation awarded by the statutory attorney fees, the attorney would get double recovery (to the extent of the limited contractual fee) for his services, at the expense of his client.
In contrast to McCarroll, the federal statute at issue in this case does not limit contingent fee contracts. Further, it does not specify that a statutory attorney fee award extinguishes all or part of the agreement between attorney and client. Therefore, the ruling of McCarroll is not controlling here to preclude recovery of both the contingent fee amount and the statutory fee award. In this case, the parties entered into a contingent fee contract similar to that in Gobert. Under *896 federal case authority construing federal statutes governing the award of attorney fees, we find that, under the contingent fee contract in this case, Mr. Jones is entitled to both the contingent fee amount of 40 percent of Ms. Dowles' damage award, as well as the statutory attorney fee award.
Contingent Fee Contract
The parties in this case had a contingent fee contract regarding the amount of attorney fees due to Mr. Jones. Interpretation of that contract is pertinent to the decision of this case. When Ms. Dowles employed Mr. Jones, they entered into an Attorney-Client Agreement which specified in pertinent part:
In consideration for services rendered and to be rendered client agree(s) to pay attorney(s) a sum equal to thirty-five[sic] (35%) of any negotiated settlement providing there is no appeal; or judicial judgment providing no appeal is taken; or forty percent (40%) of any recovery obtained in said action if [sic] Judgment if there is an appeal to a higher court, for legal services rendered on the client's behalf. Any award of attorney's fees shall be the sole property of attorney, exclusive of any award of client.
La. R.S. 37:218, regarding contingent fee contracts, provides:
A. By written contract signed by his client, an attorney at law may acquire as his fee an interest in the subject matter of a suit, proposed suit, or claim in the assertion, prosecution, or defense of which he is employed, whether the claim or suit be for money or for property. Such interest shall be a special privilege to take rank as a first privilege thereon, superior to all other privileges and security interests under Chapter 9 of the Louisiana Commercial laws. In such contract, it may be stipulated that neither the attorney nor the client may, without the written consent of the other, settle, compromise, release, discontinue, or otherwise dispose of the suit or claim. Either party to the contract may, at any time, file and record it with the clerk of court in the parish in which the suit is pending or is to be brought or with the clerk of court in the parish of the client's domicile. After such filing, any settlement, compromise, discontinuance, or other disposition made of the suit or claim by either the attorney or the client, without the written consent of the other, is null and void and the suit or claim shall be proceeded with as if no such settlement, compromise, discontinuance, or other disposition has been made.
B. The term "fee", as used in this Section, means the agreed upon fee, whether fixed or contingent, and any and all other amounts advanced by the attorney to or on behalf of the client, as permitted by the Rules of Professional Conduct of the Louisiana State Bar Association.[8]
Interpretation of contracts is governed by La. C.C. arts. 2045 et seq. Interpretation *897 of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. 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. The words of a contract must be given their generally prevailing meaning. La. C.C. art. 2047. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050. Although a contract is worded in general terms, it must be interpreted to cover only those things it appears the parties intended to include. La. C.C. art. 2051. A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties. La. C.C. art. 2053. In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text. A contract executed in a standard form of one party must be interpreted, in case of doubt, in favor of the other party. La. C.C. art. 2056.
The parties in this case were free to enter into a contingent fee contract regarding Mr. Jones' representation of Ms. Dowles. The contingent fee contract between the parties is valid and provides for a 40 percent attorney fee based upon any recovery obtained and specifies that any award of attorney fees is the attorney's property, exclusive of any award to the client. Terming the statutory attorney fee as an element of Ms. Dowles' damage award, as was done by the trial court, is contrary to the clear terms of the contract which provides that any attorney fee award is the sole property of the attorney, exclusive of any award to the client. Under the terms of the agreement, the trial court erred in treating the attorney fee as an element of damages awarded to the plaintiff, adding that amount to the damage award, and then computing the contingency fee award on the total. Accordingly, we reverse the trial court judgment allocating fees in this manner.
Reasonable Attorney Fee
Finding that there is no prohibition to allowing the attorney to recover both the contingent fee amount and the statutory attorney fee award, we must examine the award to determine if it is reasonable. In Blanchard v. Bergeron, supra, the Supreme Court found that 42 U.S.C. § 1988 provides that the court, in its discretion, may allow a reasonable attorney fee to a successful litigant, but the section does not define "reasonable attorney fee." The Court noted that the factors usually considered in determining a reasonable fee are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitation imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. The Court went on to say that the initial estimate of a reasonable attorney fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate. This result is generally known as the "lodestar" amount.
*898 The Supreme Court in Blanchard found that a contingent fee contract was simply one factor to be considered in arriving at a reasonable fee and did not place a cap on the amount of the fee. The Court reasoned that 42 U.S.C. § 1988's provision for allowing a "reasonable attorney fee" contemplates reasonable compensation, in light of all the circumstances, for the time and effort expended by the attorney for the prevailing plaintiff, no more and no less. The Supreme Court stated, "Should a fee arrangement provide less than a reasonable fee calculated in this manner, the defendant should nevertheless be required to pay the higher amount. The defendant is not, however, required to pay the amount called for in a contingent-fee contract if it is more than a reasonable fee calculated in the usual way."
The Louisiana State Bar Articles of Incorporation, Art. 16, Rules of Professional Conduct, Rule 1.5, regarding reasonable attorney fees, also requires consideration of the factors set forth in Blanchard v. Bergeron, supra. Rule 1.5 provides in pertinent part:
(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.
(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by Paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client. A copy or duplicate original of the executed agreement shall be given to the client at the time of execution of the agreement. The contingency fee agreement shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; the litigation and other expenses that are to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall *899 provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.
....
We find that, limited to the facts of this case, the statutory attorney fee award and the contingent fee amount together constitute a reasonable attorney fee. This case concerned complex litigation under federal law and involved a jury trial which lasted several days. The matter obviously required a significant amount of time on the part of Mr. Jones. After receiving a favorable jury verdict, Mr. Jones defended the verdict on appeal on Ms. Dowles' behalf and was successful in having the jury verdict doubled, as well as securing the statutorily mandated attorney fee award. Given these facts, an attorney fee award of $13,000, plus interest, is reasonable. The record contains nothing to indicate otherwise. Under these circumstances, the award of the amount due under the contingent fee contract as well as the statutory attorney fee award was reasonable.[9]
CONCLUSION
For the reasons stated above, we reverse the trial court judgment which determined the mandatory attorney fee awarded under federal statute 42 U.S.C. § 2617 to be an element of Ms. Dowles' damage award, adding that amount to the damage award, and granting the attorney fee under the contingent fee contract on 40 percent of that amount. We find that, under the contingent fee contract between Ms. Dowles and Mr. Jones, and under the federal statute requiring an award of attorney fees, Mr. Jones is entitled to recover both amounts. We render judgment ordering Ms. Dowles to pay Mr. Jones 40 percent of her damage award which is due under the contingent fee contract. We reject Mr. Jones' claim for additional attorney fees on appeal. Costs in this court are assessed to Sandra Dowles.
REVERSED AND RENDERED.
NOTES
[1] Dowles v. ConAgra, Inc., 43,074 (La.App.2d Cir.3/26/08), 980 So. 2d 180.
[2] Shortly thereafter, Pilgrim's Pride, the successor company of ConAgra, filed for bankruptcy under Chapter 11.
[3] Quint v. A.E. Staley Mfg. Co., supra, is not designated for publication in the Federal Reporter.
[4] 42 U.S.C. § 2000e-5(k) provides, in pertinent part:
(k) Attorney's fee; liability of Commission and United States for costs
In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee (including expert fees) as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.
[5] As stated above, the attorney fee statute at issue here, 29 U.S.C. § 2617 is based upon the FLSA and its attorney fee statute. We are aware of Harrington v. Empire Construction Company, (4th Cir. 1948), 167 F.2d 389, decided under the FLSA, which provides that when a statutory attorney fee is awarded, the contingent fee between the plaintiff and his attorney is abrogated. However, the later Supreme Court case of Venegas v. Mitchell, infra, suggests that this view is erroneous.
[6] For violations of civil rights, 42 U.S.C. § 1988 provides in pertinent part:
(b) Attorney's fees
In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C.A. § 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C.A. § 2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C.A. § 2000cc et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.], or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity such officer shall not be held liable for any costs, including attorney's fees, unless such action was clearly in excess of such officer's jurisdiction.
[7] La. R.S. 23:1141(B) presently provides:
B. The fees of an attorney who renders service for an employee coming under this Chapter shall not exceed twenty percent of the amount recovered.
At the time McCarroll was decided, the statute provided:
B. In no case shall the fees of an attorney who renders service for an employee coming under this Chapter exceed twenty percent of the first twenty thousand dollars and ten percent of the part of any award in excess of twenty thousand dollars.
[8] We reject the argument of Ms. Dowles that the contingent fee contract was null and void because it constituted the purchase of a litigious right which is prohibited under La. C.C. art. 2477. That statute provides:
Officers of a court, such as judges, attorneys, clerks, and law enforcement agents, cannot purchase litigious rights under contestation in the jurisdiction of that court. The purchase of a litigious right by such an officer is null and makes the purchaser liable for all costs, interest, and damages.
However, an attorney may acquire as his fee an interest in the subject matter of a suit of which he is employed. La. R.S. 37:218; Watson v. Cook, 616 So. 2d 803 (La.App. 2d Cir. 1993), writs denied, 619 So. 2d 579 (La.1993).
[9] Mr. Jones also requests additional attorney fees for prosecuting the appeal in this matter. He is not entitled to such recovery. Under Louisiana law, attorney fees are not allowed except where authorized by special statute or by contract. Shreveport Neon Signs, Inc. v. Williams, 44,079 (La.App.2d Cir.2/25/09), 5 So. 3d 977. In the present case, Mr. Jones filed pleadings against his former client to recover fees due to him based upon the contingent fee contract. Nothing in the contract requires Ms. Dowles to pay additional attorney fees to Mr. Jones for suing to recover the amounts due under the contingent fee contract. Further, there is no statute granting Mr. Jones the right to recover additional fees. Therefore, his request is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2743266/ | Opinion issued October 16, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00180-CR
———————————
RICARDO ORDONEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Case No. 1399320
MEMORANDUM OPINION
Appellant, Ricardo Ordonez, pleaded guilty to the felony offense of
aggravated sexual assault of a child under 14 years of age.1 The trial court found
appellant guilty and, in accordance with the terms of appellant’s plea bargain
1
See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 2014).
agreement with the State, sentenced appellant to 35 years’ imprisonment. Acting
pro se, appellant filed a notice of appeal. We dismiss the appeal for lack of
jurisdiction.
A plea bargain case is one in which “a defendant's plea was guilty or nolo
contendere and the punishment did not exceed the punishment recommended by
the prosecutor and agreed to by the defendant.” TEX. R. APP. P. 25.2(a)(2). In a
plea bargain case, a defendant may only appeal those matters that were raised by
written motion filed and ruled on before trial or after getting the trial court’s
permission to appeal. See TEX. CODE CRIM. PROC. ANN. art. 44.02 (West 2006);
TEX. R. APP. P. 25.2(a)(2). An appeal must be dismissed if a certification showing
that the defendant has the right of appeal has not been made part of the record. See
TEX. R. APP. P. 25.2(d).
Here, the trial court’s certification is included in the record on appeal. See id.
The trial court’s certification states that this is a plea bargain case and that the
defendant has no right of appeal. See TEX. R. APP. P. 25.2(a)(2). The record
supports the trial court’s certification. See Dears v. State, 154 S.W.3d 610, 615
(Tex. Crim. App. 2005). Because appellant has no right of appeal, we must dismiss
this appeal. See Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006) (“A
court of appeals, while having jurisdiction to ascertain whether an appellant who
2
plea-bargained is permitted to appeal by Rule 25.2(a)(2), must dismiss a prohibited
appeal without further action, regardless of the basis for the appeal.”).
Accordingly, we dismiss the appeal for want of jurisdiction. We dismiss any
pending motions as moot.
PER CURIAM
Panel consists of Justices Massengale, Brown, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
3 | 01-03-2023 | 10-17-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/89656/ | 95 U.S. 714 (____)
PENNOYER
v.
NEFF.
Supreme Court of United States.
*719 Mr. W.F. Trimble for the plaintiff in error.
Mr. James K. Kelly, contra.
MR. JUSTICE FIELD delivered the opinion of the court.
This is an action to recover the possession of a tract of land, of the alleged value of $15,000, situated in the State of Oregon. The plaintiff asserts title to the premises by a patent of the United States issued to him in 1866, under the act of Congress of Sept. 27, 1850, usually known as the Donation Law of Oregon. The defendant claims to have acquired the premises under a sheriff's deed, made upon a sale of the property on execution issued upon a judgment recovered against the plaintiff in one of the circuit courts of the State. The case turns upon the validity of this judgment.
It appears from the record that the judgment was rendered in February, 1866, in favor of J.H. Mitchell, for less than $300, including costs, in an action brought by him upon a demand for services as an attorney; that, at the time the action was commenced and the judgment rendered, the defendant therein, the plaintiff here, was a non-resident of the State *720 that he was not personally served with process, and did not appear therein; and that the judgment was entered upon his default in not answering the complaint, upon a constructive service of summons by publication.
The Code of Oregon provides for such service when an action is brought against a non-resident and absent defendant, who has property within the State. It also provides, where the action is for the recovery of money or damages, for the attachment of the property of the non-resident. And it also declares that no natural person is subject to the jurisdiction of a court of the State, "unless he appear in the court, or be found within the State, or be a resident thereof, or have property therein; and, in the last case, only to the extent of such property at the time the jurisdiction attached." Construing this latter provision to mean, that, in an action for money or damages where a defendant does not appear in the court, and is not found within the State, and is not a resident thereof, but has property therein, the jurisdiction of the court extends only over such property, the declaration expresses a principle of general, if not universal, law. The authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established. Any attempt to exercise authority beyond those limits would be deemed in every other forum, as has been said by this court, an illegitimate assumption of power, and be resisted as mere abuse. D'Arcy v. Ketchum et al., 11 How. 165. In the case against the plaintiff, the property here in controversy sold under the judgment rendered was not attached, nor in any way brought under the jurisdiction of the court. Its first connection with the case was caused by a levy of the execution. It was not, therefore, disposed of pursuant to any adjudication, but only in enforcement of a personal judgment, having no relation to the property, rendered against a non-resident without service of process upon him in the action, or his appearance therein. The court below did not consider that an attachment of the property was essential to its jurisdiction or to the validity of the sale, but held that the judgment was invalid from defects in the affidavit upon which the order of publication was obtained, and in the affidavit by which the publication was proved.
*721 There is some difference of opinion among the members of this court as to the rulings upon these alleged defects. The majority are of opinion that inasmuch as the statute requires, for an order of publication, that certain facts shall appear by affidavit to the satisfaction of the court or judge, defects in such affidavit can only be taken advantage of on appeal, or by some other direct proceeding, and cannot be urged to impeach the judgment collaterally. The majority of the court are also of opinion that the provision of the statute requiring proof of the publication in a newspaper to be made by the "affidavit of the printer, or his foreman, or his principal clerk," is satisfied when the affidavit is made by the editor of the paper. The term "printer," in their judgment, is there used not to indicate the person who sets up the type, he does not usually have a foreman or clerks, it is rather used as synonymous with publisher. The Supreme Court of New York so held in one case; observing that, for the purpose of making the required proof, publishers were "within the spirit of the statute." Bunce v. Reed, 16 Barb. (N.Y.) 350. And, following this ruling, the Supreme Court of California held that an affidavit made by a "publisher and proprietor" was sufficient. Sharp v. Daugney, 33 Cal. 512. The term "editor," as used when the statute of New York was passed, from which the Oregon law is borrowed, usually included not only the person who wrote or selected the articles for publication, but the person who published the paper and put it into circulation. Webster, in an early edition of his Dictionary, gives as one of the definitions of an editor, a person "who superintends the publication of a newspaper." It is principally since that time that the business of an editor has been separated from that of a publisher and printer, and has become an independent profession.
If, therefore, we were confined to the rulings of the court below upon the defects in the affidavits mentioned, we should be unable to uphold its decision. But it was also contended in that court, and is insisted upon here, that the judgment in the State court against the plaintiff was void for want of personal service of process on him, or of his appearance in the action in which it was rendered, and that the premises in controversy could not be subjected to the payment of the demand *722 of a resident creditor except by a proceeding in rem; that is, by a direct proceeding against the property for that purpose. If these positions are sound, the ruling of the Circuit Court as to the invalidity of that judgment must be sustained, notwithstanding our dissent from the reasons upon which it was made. And that they are sound would seem to follow from two well-established principles of public law respecting the jurisdiction of an independent State over persons and property. The several States of the Union are not, it is true, in every respect independent, many of the rights and powers which originally belonged to them being now vested in the government created by the Constitution. But, except as restrained and limited by that instrument, they possess and exercise the authority of independent States, and the principles of public law to which we have referred are applicable to them. One of these principles is, that every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory. As a consequence, every State has the power to determine for itself the civil status and capacities of its inhabitants; to prescribe the subjects upon which they may contract, the forms and solemnities with which their contracts shall be executed, the rights and obligations arising from them, and the mode in which their validity shall be determined and their obligations enforced; and also to regulate the manner and conditions upon which property situated within such territory, both personal and real, may be acquired, enjoyed, and transferred. The other principle of public law referred to follows from the one mentioned; that is, that no State can exercise direct jurisdiction and authority over persons or property without its territory. Story, Confl. Laws, c. 2; Wheat. Int. Law, pt. 2, c. 2. The several States are of equal dignity and authority, and the independence of one implies the exclusion of power from all others. And so it is laid down by jurists, as an elementary principle, that the laws of one State have no operation outside of its territory, except so far as is allowed by comity; and that no tribunal established by it can extend its process beyond that territory so as to subject either persons or property to its decisions. "Any exertion of authority of this sort beyond this limit," says Story, "is a mere nullity, and incapable of binding *723 such persons or property in any other tribunals." Story, Confl. Laws, sect. 539.
But as contracts made in one State may be enforceable only in another State, and property may be held by non-residents, the exercise of the jurisdiction which every State is admitted to possess over persons and property within its own territory will often affect persons and property without it. To any influence exerted in this way by a State affecting persons resident or property situated elsewhere, no objection can be justly taken; whilst any direct exertion of authority upon them, in an attempt to give ex-territorial operation to its laws, or to enforce an ex-territorial jurisdiction by its tribunals, would be deemed an encroachment upon the independence of the State in which the persons are domiciled or the property is situated, and be resisted as usurpation.
Thus the State, through its tribunals, may compel persons domiciled within its limits to execute, in pursuance of their contracts respecting property elsewhere situated, instruments in such form and with such solemnities as to transfer the title, so far as such formalities can be complied with; and the exercise of this jurisdiction in no manner interferes with the supreme control over the property by the State within which it is situated. Penn v. Lord Baltimore, 1 Ves. 444; Massie v. Watts, 6 Cranch, 148; Watkins v. Holman, 16 Pet. 25; Corbett v. Nutt, 10 Wall. 464.
So the State, through its tribunals, may subject property situated within its limits owned by non-residents to the payment of the demand of its own citizens against them; and the exercise of this jurisdiction in no respect infringes upon the sovereignty of the State where the owners are domiciled. Every State owes protection to its own citizens; and, when non-residents deal with them, it is a legitimate and just exercise of authority to hold and appropriate any property owned by such non-residents to satisfy the claims of its citizens. It is in virtue of the State's jurisdiction over the property of the non-resident situated within its limits that its tribunals can inquire into that non-resident's obligations to its own citizens, and the inquiry can then be carried only to the extent necessary to control the disposition of the property. If the non-resident *724 have no property in the State, there is nothing upon which the tribunals can adjudicate.
These views are not new. They have been frequently expressed, with more or less distinctness, in opinions of eminent judges, and have been carried into adjudications in numerous cases. Thus, in Picquet v. Swan, 5 Mas. 35, Mr. Justice Story said:
"Where a party is within a territory, he may justly be subjected to its process, and bound personally by the judgment pronounced on such process against him. Where he is not within such territory, and is not personally subject to its laws, if, on account of his supposed or actual property being within the territory, process by the local laws may, by attachment, go to compel his appearance, and for his default to appear judgment may be pronounced against him, such a judgment must, upon general principles, be deemed only to bind him to the extent of such property, and cannot have the effect of a conclusive judgment in personam, for the plain reason, that, except so far as the property is concerned, it is a judgment coram non judice."
And in Boswell's Lessee v. Otis, 9 How. 336, where the title of the plaintiff in ejectment was acquired on a sheriff's sale, under a money decree rendered upon publication of notice against non-residents, in a suit brought to enforce a contract relating to land, Mr. Justice McLean said:
"Jurisdiction is acquired in one of two modes: first, as against the person of the defendant by the service of process; or, secondly, by a procedure against the property of the defendant within the jurisdiction of the court. In the latter case, the defendant is not personally bound by the judgment beyond the property in question. And it is immaterial whether the proceeding against the property be by an attachment or bill in chancery. It must be substantially a proceeding in rem."
These citations are not made as authoritative expositions of the law; for the language was perhaps not essential to the decision of the cases in which it was used, but as expressions of the opinion of eminent jurists. But in Cooper v. Reynolds, reported in the 10th of Wallace, it was essential to the disposition of the case to declare the effect of a personal action against an absent party, without the jurisdiction of the court, not served *725 with process or voluntarily submitting to the tribunal, when it was sought to subject his property to the payment of a demand of a resident complainant; and in the opinion there delivered we have a clear statement of the law as to the efficacy of such actions, and the jurisdiction of the court over them. In that case, the action was for damages for alleged false imprisonment of the plaintiff; and, upon his affidavit that the defendants had fled from the State, or had absconded or concealed themselves so that the ordinary process of law could not reach them, a writ of attachment was sued out against their property. Publication was ordered by the court, giving notice to them to appear and plead, answer or demur, or that the action would be taken as confessed and proceeded in ex parte as to them. Publication was had; but they made default, and judgment was entered against them, and the attached property was sold under it. The purchaser having been put into possession of the property, the original owner brought ejectment for its recovery. In considering the character of the proceeding, the court, speaking through Mr. Justice Miller, said:
"Its essential purpose or nature is to establish, by the judgment of the court, a demand or claim against the defendant, and subject his property lying within the territorial jurisdiction of the court to the payment of that demand. But the plaintiff is met at the commencement of his proceedings by the fact that the defendant is not within the territorial jurisdiction, and cannot be served with any process by which he can be brought personally within the power of the court. For this difficulty the statute has provided a remedy. It says that, upon affidavit being made of that fact, a writ of attachment may be issued and levied on any of the defendant's property, and a publication may be made warning him to appear; and that thereafter the court may proceed in the case, whether he appears or not. If the defendant appears, the cause becomes mainly a suit in personam, with the added incident, that the property attached remains liable, under the control of the court, to answer to any demand which may be established against the defendant by the final judgment of the court. But if there is no appearance of the defendant, and no service of process on him, the case becomes in its essential nature a proceeding in rem, the only effect of which is to subject the property attached to the payment of the demand which the court may find to be due to the plaintiff. That such is *726 the nature of this proceeding in this latter class of cases is clearly evinced by two well-established propositions: first, the judgment of the court, though in form a personal judgment against the defendant, has no effect beyond the property attached in that suit. No general execution can be issued for any balance unpaid after the attached property is exhausted. No suit can be maintained on such a judgment in the same court, or in any other; nor can it be used as evidence in any other proceeding not affecting the attached property; nor could the costs in that proceeding be collected of defendant out of any other property than that attached in the suit. Second, the court, in such a suit, cannot proceed, unless the officer finds some property of defendant on which to levy the writ of attachment. A return that none can be found is the end of the case, and deprives the court of further jurisdiction, though the publication may have been duly made and proven in court."
The fact that the defendants in that case had fled from the State, or had concealed themselves, so as not to be reached by the ordinary process of the court, and were not non-residents, was not made a point in the decision. The opinion treated them as being without the territorial jurisdiction of the court; and the grounds and extent of its authority over persons and property thus situated were considered, when they were not brought within its jurisdiction by personal service or voluntary appearance.
The writer of the present opinion considered that some of the objections to the preliminary proceedings in the attachment suit were well taken, and therefore dissented from the judgment of the court; but to the doctrine declared in the above citation he agreed, and he may add, that it received the approval of all the judges. It is the only doctrine consistent with proper protection to citizens of other States. If, without personal service, judgments in personam, obtained ex parte against non-residents and absent parties, upon mere publication of process, which, in the great majority of cases, would never be seen by the parties interested, could be upheld and enforced, they would be the constant instruments of fraud and oppression. Judgments for all sorts of claims upon contracts and for torts, real or pretended, would be thus obtained, under which property would be seized, when the evidence of the transactions upon *727 which they were founded, if they ever had any existence, had perished.
Substituted service by publication, or in any other authorized form, may be sufficient to inform parties of the object of proceedings taken where property is once brought under the control of the court by seizure or some equivalent act. The law assumes that property is always in the possession of its owner, in person or by agent; and it proceeds upon the theory that its seizure will inform him, not only that it is taken into the custody of the court, but that he must look to any proceedings authorized by law upon such seizure for its condemnation and sale. Such service may also be sufficient in cases where the object of the action is to reach and dispose of property in the State, or of some interest therein, by enforcing a contract or a lien respecting the same, or to partition it among different owners, or, when the public is a party, to condemn and appropriate it for a public purpose. In other words, such service may answer in all actions which are substantially proceedings in rem. But where the entire object of the action is to determine the personal rights and obligations of the defendants, that is, where the suit is merely in personam, constructive service in this form upon a non-resident is ineffectual for any purpose. Process from the tribunals of one State cannot run into another State, and summon parties there domiciled to leave its territory and respond to proceedings against them. Publication of process or notice within the State where the tribunal sits cannot create any greater obligation upon the non-resident to appear. Process sent to him out of the State, and process published within it, are equally unavailing in proceedings to establish his personal liability.
The want of authority of the tribunals of a State to adjudicate upon the obligations of non-residents, where they have no property within its limits, is not denied by the court below: but the position is assumed, that, where they have property within the State, it is immaterial whether the property is in the first instance brought under the control of the court by attachment or some other equivalent act, and afterwards applied by its judgment to the satisfaction of demands against its owner; or such demands be first established in a personal action, and *728 the property of the non-resident be afterwards seized and sold on execution. But the answer to this position has already been given in the statement, that the jurisdiction of the court to inquire into and determine his obligations at all is only incidental to its jurisdiction over the property. Its jurisdiction in that respect cannot be made to depend upon facts to be ascertained after it has tried the cause and rendered the judgment. If the judgment be previously void, it will not become valid by the subsequent discovery of property of the defendant, or by his subsequent acquisition of it. The judgment if void when rendered, will always remain void: it cannot occupy the doubtful position of being valid if property be found, and void if there be none. Even if the position assumed were confined to cases where the non-resident defendant possessed property in the State at the commencement of the action, it would still make the validity of the proceedings and judgment depend upon the question whether, before the levy of the execution, the defendant had or had not disposed of the property. If before the levy the property should be sold, then, according to this position, the judgment would not be binding. This doctrine would introduce a new element of uncertainty in judicial proceedings. The contrary is the law: the validity of every judgment depends upon the jurisdiction of the court before it is rendered, not upon what may occur subsequently. In Webster v. Reid, reported in 11th of Howard, the plaintiff claimed title to land sold under judgments recovered in suits brought in a territorial court of Iowa, upon publication of notice under a law of the territory, without service of process; and the court said:
"These suits were not a proceeding in rem against the land, but were in personam against the owners of it. Whether they all resided within the territory or not does not appear, nor is it a matter of any importance. No person is required to answer in a suit on whom process has not been served, or whose property has not been attached. In this case, there was no personal notice, nor an attachment or other proceeding against the land, until after the judgments. The judgments, therefore, are nullities, and did not authorize the executions on which the land was sold."
*729 The force and effect of judgments rendered against non-residents without personal service of process upon them, or their voluntary appearance, have been the subject of frequent consideration in the courts of the United States and of the several States, as attempts have been made to enforce such judgments in States other than those in which they were rendered, under the provision of the Constitution requiring that "full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State;" and the act of Congress providing for the mode of authenticating such acts, records, and proceedings, and declaring that, when thus authenticated, "they shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are or shall be taken." In the earlier cases, it was supposed that the act gave to all judgments the same effect in other States which they had by law in the State where rendered. But this view was afterwards qualified so as to make the act applicable only when the court rendering the judgment had jurisdiction of the parties and of the subject-matter, and not to preclude an inquiry into the jurisdiction of the court in which the judgment was rendered, or the right of the State itself to exercise authority over the person or the subject-matter. M'Elmoyle v. Cohen, 13 Pet. 312. In the case of D'Arcy v. Ketchum, reported in the 11th of Howard, this view is stated with great clearness. That was an action in the Circuit Court of the United States for Louisiana, brought upon a judgment rendered in New York under a State statute, against two joint debtors, only one of whom had been served with process, the other being a non-resident of the State. The Circuit Court held the judgment conclusive and binding upon the non-resident not served with process; but this court reversed its decision, observing, that it was a familiar rule that countries foreign to our own disregarded a judgment merely against the person, where the defendant had not been served with process nor had a day in court; that national comity was never thus extended; that the proceeding was deemed an illegitimate assumption of power, and resisted as mere abuse; that no faith and credit or force and effect had been given to such judgments by any State of the Union, so far *730 as known; and that the State courts had uniformly, and in many instances, held them to be void. "The international law," said the court, "as it existed among the States in 1790, was that a judgment rendered in one State, assuming to bind the person of a citizen of another, was void within the foreign State, when the defendant had not been served with process or voluntarily made defence; because neither the legislative jurisdiction nor that of courts of justice had binding force." And the court held that the act of Congress did not intend to declare a new rule, or to embrace judicial records of this description. As was stated in a subsequent case, the doctrine of this court is, that the act "was not designed to displace that principle of natural justice which requires a person to have notice of a suit before he can be conclusively bound by its result, nor those rules of public law which protect persons and property within one State from the exercise of jurisdiction over them by another." The Lafayette Insurance Co. v. French et al., 18 How. 404.
This whole subject has been very fully and learnedly considered in the recent case of Thompson v. Whitman, 18 Wall. 457, where all the authorities are carefully reviewed and distinguished, and the conclusion above stated is not only reaffirmed, but the doctrine is asserted, that the record of a judgment rendered in another State may be contradicted as to the facts necessary to give the court jurisdiction against its recital of their existence. In all the cases brought in the State and Federal courts, where attempts have been made under the act of Congress to give effect in one State to personal judgments rendered in another State against non-residents, without service upon them, or upon substituted service by publication, or in some other form, it has been held, without an exception, so far as we are aware, that such judgments were without any binding force, except as to property, or interests in property, within the State, to reach and affect which was the object of the action in which the judgment was rendered, and which property was brought under control of the court in connection with the process against the person. The proceeding in such cases, though in the form of a personal action, has been uniformly treated, where service was not obtained, and the party did not voluntarily *731 appear, as effectual and binding merely as a proceeding in rem, and as having no operation beyond the disposition of the property, or some interest therein. And the reason assigned for this conclusion has been that which we have already stated, that the tribunals of one State have no jurisdiction over persons beyond its limits, and can inquire only into their obligations to its citizens when exercising its conceded jurisdiction over their property within its limits. In Bissell v. Briggs, decided by the Supreme Court of Massachusetts as early as 1813, the law is stated substantially in conformity with these views. In that case, the court considered at length the effect of the constitutional provision, and the act of Congress mentioned, and after stating that, in order to entitle the judgment rendered in any court of the United States to the full faith and credit mentioned in the Constitution, the court must have had jurisdiction not only of the cause, but of the parties, it proceeded to illustrate its position by observing, that, where a debtor living in one State has goods, effects, and credits in another, his creditor living in the other State may have the property attached pursuant to its laws, and, on recovering judgment, have the property applied to its satisfaction; and that the party in whose hands the property was would be protected by the judgment in the State of the debtor against a suit for it, because the court rendering the judgment had jurisdiction to that extent; but that if the property attached were insufficient to satisfy the judgment, and the creditor should sue on that judgment in the State of the debtor, he would fail, because the defendant was not amenable to the court rendering the judgment. In other words, it was held that over the property within the State the court had jurisdiction by the attachment, but had none over his person; and that any determination of his liability, except so far as was necessary for the disposition of the property, was invalid.
In Kilbourn v. Woodworth, 5 Johns. (N.Y.) 37, an action of debt was brought in New York upon a personal judgment recovered in Massachusetts. The defendant in that judgment was not served with process; and the suit was commenced by the attachment of a bedstead belonging to the defendant, accompanied with a summons to appear, served on his wife after she had left her place in Massachusetts. The court held that *732 the attachment bound only the property attached as a proceeding in rem, and that it could not bind the defendant, observing, that to bind a defendant personally, when he was never personally summoned or had notice of the proceeding, would be contrary to the first principles of justice, repeating the language in that respect of Chief Justice DeGrey, used in the case of Fisher v. Lane, 3 Wils. 297, in 1772. See also Borden v. Fitch, 15 Johns. (N.Y.) 121, and the cases there cited, and Harris v. Hardeman et al., 14 How. 334. To the same purport decisions are found in all the State courts. In several of the cases, the decision has been accompanied with the observation that a personal judgment thus recovered has no binding force without the State in which it is rendered, implying that in such State it may be valid and binding. But if the court has no jurisdiction over the person of the defendant by reason of his non-residence, and, consequently, no authority to pass upon his personal rights and obligations; if the whole proceeding, without service upon him or his appearance, is coram non judice and void; if to hold a defendant bound by such a judgment is contrary to the first principles of justice, it is difficult to see how the judgment can legitimately have any force within the State. The language used can be justified only on the ground that there was no mode of directly reviewing such judgment or impeaching its validity within the State where rendered; and that, therefore, it could be called in question only when its enforcement was elsewhere attempted. In later cases, this language is repeated with less frequency than formerly, it beginning to be considered, as it always ought to have been, that a judgment which can be treated in any State of this Union as contrary to the first principles of justice, and as an absolute nullity, because rendered without any jurisdiction of the tribunal over the party, is not entitled to any respect in the State where rendered. Smith v. McCutchen, 38 Mo. 415; Darrance v. Preston, 18 Iowa, 396; Hakes v. Shupe, 27 id. 465; Mitchell's Administrator v. Gray, 18 Ind. 123.
Be that as it may, the courts of the United States are not required to give effect to judgments of this character when any right is claimed under them. Whilst they are not foreign tribunals in their relations to the State courts, they are tribunals *733 of a different sovereignty, exercising a distinct and independent jurisdiction, and are bound to give to the judgments of the State courts only the same faith and credit which the courts of another State are bound to give to them.
Since the adoption of the Fourteenth Amendment to the Federal Constitution, the validity of such judgments may be directly questioned, and their enforcement in the State resisted, on the ground that proceedings in a court of justice to determine the personal rights and obligations of parties over whom that court has no jurisdiction do not constitute due process of law. Whatever difficulty may be experienced in giving to those terms a definition which will embrace every permissible exertion of power affecting private rights, and exclude such as is forbidden, there can be no doubt of their meaning when applied to judicial proceedings. They then mean a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights. To give such proceedings any validity, there must be a tribunal competent by its constitution that is, by the law of its creation to pass upon the subject-matter of the suit; and, if that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the State, or his voluntary appearance.
Except in cases affecting the personal status of the plaintiff, and cases in which that mode of service may be considered to have been assented to in advance, as hereinafter mentioned, the substituted service of process by publication, allowed by the law of Oregon and by similar laws in other States, where actions are brought against non-residents, is effectual only where, in connection with process against the person for commencing the action, property in the State is brought under the control of the court, and subjected to its disposition by process adapted to that purpose, or where the judgment is sought as a means of reaching such property or affecting some interest therein; in other words, where the action is in the nature of a proceeding in rem. As stated by Cooley in his Treatise on Constitutional Limitations, 405, for any other purpose than to subject the property of a non-resident to valid claims against *734 him in the State, "due process of law would require appearance or personal service before the defendant could be personally bound by any judgment rendered."
It is true that, in a strict sense, a proceeding in rem is one taken directly against property, and has for its object the disposition of the property, without reference to the title of individual claimants; but, in a larger and more general sense, the terms are applied to actions between parties, where the direct object is to reach and dispose of property owned by them, or of some interest therein. Such are cases commenced by attachment against the property of debtors, or instituted to partition real estate, foreclose a mortgage, or enforce a lien. So far as they affect property in the State, they are substantially proceedings in rem in the broader sense which we have mentioned.
It is hardly necessary to observe, that in all we have said we have had reference to proceedings in courts of first instance, and to their jurisdiction, and not to proceedings in an appellate tribunal to review the action of such courts. The latter may be taken upon such notice, personal or constructive, as the State creating the tribunal may provide. They are considered as rather a continuation of the original litigation than the commencement of a new action. Nations et al. v. Johnson et al., 24 How. 195.
It follows from the views expressed that the personal judgment recovered in the State court of Oregon against the plaintiff herein, then a non-resident of the State, was without any validity, and did not authorize a sale of the property in controversy.
To prevent any misapplication of the views expressed in this opinion, it is proper to observe that we do not mean to assert, by any thing we have said, that a State may not authorize proceedings to determine the status of one of its citizens towards a non-resident, which would be binding within the State, though made without service of process or personal notice to the non-resident. The jurisdiction which every State possesses to determine the civil status and capacities of all its inhabitants involves authority to prescribe the conditions on which proceedings affecting them may be commenced and carried on within its territory. The State, for example, has absolute *735 right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved. One of the parties guilty of acts for which, by the law of the State, a dissolution may be granted, may have removed to a State where no dissolution is permitted. The complaining party would, therefore, fail if a divorce were sought in the State of the defendant; and if application could not be made to the tribunals of the complainant's domicile in such case, and proceedings be there instituted without personal service of process or personal notice to the offending party, the injured citizen would be without redress. Bish. Marr. and Div., sect. 156.
Neither do we mean to assert that a State may not require a non-resident entering into a partnership or association within its limits, or making contracts enforceable there, to appoint an agent or representative in the State to receive service of process and notice in legal proceedings instituted with respect to such partnership, association, or contracts, or to designate a place where such service may be made and notice given, and provide, upon their failure, to make such appointment or to designate such place that service may be made upon a public officer designated for that purpose, or in some other prescribed way, and that judgments rendered upon such service may not be binding upon the non-residents both within and without the State. As was said by the Court of Exchequer in Vallee v. Dumergue, 4 Exch. 290, "It is not contrary to natural justice that a man who has agreed to receive a particular mode of notification of legal proceedings should be bound by a judgment in which that particular mode of notification has been followed, even though he may not have actual notice of them." See also The Lafayette Insurance Co. v. French et al., 18 How. 404, and Gillespie v. Commercial Mutual Marine Insurance Co., 12 Gray (Mass.), 201. Nor do we doubt that a State, on creating corporations or other institutions for pecuniary or charitable purposes, may provide a mode in which their conduct may be investigated, their obligations enforced, or their charters revoked, which shall require other than personal service upon their officers or members. Parties becoming members of such corporations or institutions would hold their *736 interest subject to the conditions prescribed by law. Copin v. Adamson, Law Rep. 9 Ex. 345.
In the present case, there is no feature of this kind, and, consequently, no consideration of what would be the effect of such legislation in enforcing the contract of a non-resident can arise. The question here respects only the validity of a money judgment rendered in one State, in an action upon a simple contract against the resident of another, without service of process upon him, or his appearance therein.
Judgment affirmed.
MR. JUSTICE HUNT dissenting.
I am compelled to dissent from the opinion and judgment of the court, and, deeming the question involved to be important, I take leave to record my views upon it.
The judgment of the court below was placed upon the ground that the provisions of the statute were not complied with. This is of comparatively little importance, as it affects the present case only. The judgment of this court is based upon the theory that the legislature had no power to pass the law in question; that the principle of the statute is vicious, and every proceeding under it void. It, therefore, affects all like cases, past and future, and in every State.
The precise case is this: A statute of Oregon authorizes suits to be commenced by the service of a summons. In the case of a non-resident of the State, it authorizes the service of the summons to be made by publication for not less than six weeks, in a newspaper published in the county where the action is commenced. A copy of the summons must also be sent by mail, directed to the defendant at his place of residence, unless it be shown that the residence is not known and cannot be ascertained. It authorizes a judgment and execution to be obtained in such proceeding. Judgment in a suit commenced by one Mitchell in the Circuit Court of Multnomah County, where the summons was thus served, was obtained against Neff, the present plaintiff; and the land in question, situate in Multnomah County, was bought by the defendant Pennoyer, at a sale upon the judgment in such suit. This court now holds, that, by reason of the absence of a personal service of *737 the summons on the defendant, the Circuit Court of Oregon had no jurisdiction, its judgment could not authorize the sale of land in said county, and, as a necessary result, a purchaser of land under it obtained no title; that, as to the former owner, it is a case of depriving a person of his property without due process of law.
In my opinion, this decision is at variance with the long-established practice under the statutes of the States of this Union, is unsound in principle, and, I fear, may be disastrous in its effects. It tends to produce confusion in titles which have been obtained under similar statutes in existence for nearly a century; it invites litigation and strife, and over throws a well-settled rule of property.
The result of the authorities on the subject, and the sound conclusions to be drawn from the principles which should govern the decision, as I shall endeavor to show, are these:
1. A sovereign State must necessarily have such control over the real and personal property actually being within its limits, as that it may subject the same to the payment of debts justly due to its citizens.
2. This result is not altered by the circumstance that the owner of the property is non-resident, and so absent from the State that legal process cannot be served upon him personally.
3. Personal notice of a proceeding by which title to property is passed is not indispensable; it is competent to the State to authorize substituted service by publication or otherwise, as the commencement of a suit against non-residents, the judgment in which will authorize the sale of property in such State.
4. It belongs to the legislative power of the State to determine what shall be the modes and means proper to be adopted to give notice to an absent defendant of the commencement of a suit; and if they are such as are reasonably likely to communicate to him information of the proceeding against him, and are in good faith designed to give him such information, and an opportunity to defend is provided for him in the event of his appearance in the suit, it is not competent to the judiciary to declare that such proceeding is void as not being by due process of law.
5. Whether the property of such non-resident shall be seized *738 upon attachment as the commencement of a suit which shall be carried into judgment and execution, upon which it shall then be sold, or whether it shall be sold upon an execution and judgment without such preliminary seizure, is a matter not of constitutional power, but of municipal regulation only.
To say that a sovereign State has the power to ordain that the property of non-residents within its territory may be subjected to the payment of debts due to its citizens, if the property is levied upon at the commencement of a suit, but that it has not such power if the property is levied upon at the end of the suit, is a refinement and a depreciation of a great general principle that, in my judgment, cannot be sustained.
A reference to the statutes of the different States, and to the statutes of the United States, and to the decided cases, and a consideration of the principles on which they stand, will more clearly exhibit my view of the question.
The statutes are of two classes: first, those which authorize the commencement of actions by publication, accompanied by an attachment which is levied upon property more or less, of an absent debtor; second, those giving the like mode of commencing a suit without an attachment.
The statute of Oregon relating to publication of summons, supra, p. 718, under which the question arises, is nearly a transcript of a series of provisions contained in the New York statute, adopted thirty years since. The latter authorizes the commencement of a suit against a non-resident by the publication of an order for his appearance, for a time not less than six weeks, in such newspapers as shall be most likely to give notice to him, and the deposit of a copy of the summons and complaint in the post-office, directed to him at his residence, if it can be ascertained; and provides for the allowance to defend the action before judgment, and within seven years after its rendition, upon good cause shown, and that, if the defence be successful, restitution shall be ordered. It then declares: "But the title to property sold under such judgment to a purchaser in good faith shall not be thereby affected." Code, sects. 34, 35; 5 Edm. Rev. Stat. of N.Y., pp. 37-39.
Provisions similar in their effect, in authorizing the commencement of suits by attachment against absent debtors, in *739 which all of the property of the absent debtor, real and personal, not merely that seized upon the attachment, is placed under the control of trustees, who sell it for the benefit of all the creditors, and make just distribution thereof, conveying absolute title to the property sold, have been upon the statute-book of New York for more than sixty years. 2 id., p. 2 and following; 1 Rev. Laws, 1813, p. 157.
The statute of New York, before the Code, respecting proceedings in chancery where absent debtors are parties, had long been in use in that State, and was adopted in all cases of chancery jurisdiction. Whenever a defendant resided out of the State, his appearance might be compelled by publication in the manner pointed out. A decree might pass against him, and performance be compelled by sequestration of his real or personal property, or by causing possession of specific property to be delivered, where that relief is sought. The relief was not confined to cases of mortgage foreclosure, or where there was a specific claim upon the property, but included cases requiring the payment of money as well. 2 Edm. Rev. Stat. N.Y., pp. 193-195; 186, m.
I doubt not that many valuable titles are now held by virtue of the provisions of these statutes.
The statute of California authorizes the service of a summons on a non-resident defendant by publication, permitting him to come in and defend upon the merits within one year after the entry of judgment. Code, sects. 10,412, 10,473. In its general character it is like the statutes of Oregon and New York, already referred to.
The Code of Iowa, sect. 2618, that of Nevada, sect. 1093, and that of Wisconsin, are to the same general effect. The Revised Statutes of Ohio, sects. 70, 75, 2 Swan & Critchfield, provide for a similar publication, and that the defendant may come in to defend within five years after the entry of the judgment, but that the title to property held by any purchaser in good faith under the judgment shall not be affected thereby.
The attachment laws of New Jersey, Nixon Dig. (4th ed.), p. 55, are like those of New York already quoted, by which title may be transferred to all the property of a non-resident debtor. And the provisions of the Pennsylvania statute regulating *740 proceedings in equity, Brightly's Purden's Dig., p. 5988, sects. 51, 52, give the same authority in substance, and the same result is produced as under the New York statute.
Without going into a wearisome detail of the statutes of the various States, it is safe to say that nearly every State in the Union provides a process by which the lands and other property of a non-resident debtor may be subjected to the payment of his debts, through a judgment or decree against the owner, obtained upon a substituted service of the summons or writ commencing the action.
The principle of substituted service is also a rule of property under the statutes of the United States.
The act of Congress "to amend the law of the District of Columbia in relation to judicial proceedings therein," approved Feb. 23, 1867, 14 Stat. 403, contains the same general provisions. It enacts (sect. 7) that publication may be substituted for personal service, when the defendant cannot be found, in suits for partition, divorce, by attachment, for the foreclosure of mortgages and deeds of trust, and for the enforcement of mechanics' liens and all other liens against real or personal property, and in all actions at law or in equity having for their immediate object the enforcement or establishment of any lawful right, claim, or demand to or against any real or personal property within the jurisdiction of the court.
A following section points out the mode of proceeding, and closes in these words:
"The decree, besides subjecting the thing upon which the lien has attached to the satisfaction of the plaintiff's demand against the defendant, shall adjudge that the plaintiff recover his demand against the defendant, and that he may have execution thereof as at law." Sect. 10.
A formal judgment against the debtor is thus authorized, by means of which any other property of the defendant within the jurisdiction of the court, in addition to that which is the subject of the lien, may be sold, and the title transferred to the purchaser.
All these statutes are now adjudged to be unconstitutional and void. The titles obtained under them are not of the value *741 of the paper on which they are recorded, except where a preliminary attachment was issued.
Some of the statutes and several of the authorities I cite go further than the present case requires. In this case, property lying in the State where the suit was brought, owned by the non-resident debtor, was sold upon the judgment against him; and it is on the title to that property that the controversy turns.
The question whether, in a suit commenced like the present one, a judgment can be obtained, which, if sued upon in another State, will be conclusive against the debtor, is not before us; nor does the question arise as to the faith and credit to be given in one State to a judgment recovered in another. The learning on that subject is not applicable. The point is simply whether land lying in the same State may be subjected to process at the end of a suit thus commenced.
It is here necessary only to maintain the principle laid down by Judge Cooley in his work on Constitutional Limitations, p. 404, and cited by Mr. Justice Field in Galpin v. Page, 3 Sawyer, 93, in these words:
"The fact that process was not personally served is a conclusive objection to the judgment as a personal claim, unless the defendant caused his appearance to be entered in the attachment proceedings. Where a party has property in a State, and resides elsewhere, his property is justly subject to all valid claims that may exist against him there; but beyond this, due process of law would require appearance or personal service before the defendant could be personally bound by any judgment rendered."
The learned author does not make it a condition that there should be a preliminary seizure of the property by attachment; he lays down the rule that all a person's property in a State may be subjected to all valid claims there existing against him.
The objection now made, that suits commenced by substituted service, as by publication, and judgments obtained without actual notice to the debtor, are in violation of that constitutional provision that no man shall be deprived of his property "without due process of law," has often been presented.
In Matter of the Empire City Bank, 18 N.Y. 199, which *742 was a statutory proceeding to establish and to enforce the responsibility of the stockholders of a banking corporation, and the proceedings in which resulted in a personal judgment against the stockholders for the amount found due, the eminent and learned Judge Denio, speaking as the organ of the Court of Appeals, says:
"The notice of hearing is to be personal, or by service at the residence of the parties who live in the county, or by advertisement as to others. It may, therefore, happen that some of the persons who are made liable will not have received actual notice, and the question is, whether personal service of process or actual notice to the party is essential to constitute due process of law. We have not been referred to any adjudication holding that no man's right of property can be affected by judicial proceedings unless he have personal notice. It may be admitted that a statute which should authorize any debt or damages to be adjudged against a person upon a purely ex parte proceeding, without a pretence of notice or any provision for defending, would be a violation of the Constitution, and be void; but where the legislature has prescribed a kind of notice by which it is reasonably probable that the party proceeded against will be apprised of what is going on against him, and an opportunity is afforded him to defend, I am of the opinion that the courts have not the power to pronounce the proceeding illegal. The legislature has uniformly acted upon that understanding of the Constitution."
Numerous provisions of the statutes of the State are commented upon, after which he proceeds:
"Various prudential regulations are made with respect to these remedies; but it may possibly happen, notwithstanding all these precautions, that a citizen who owes nothing, and has done none of the acts mentioned in the statute, may be deprived of his estate, without any actual knowledge of the process by which it has been taken from him. If we hold, as we must in order to sustain this legislation, that the Constitution does not positively require personal notice in order to constitute a legal proceeding due process of law, it then belongs to the legislature to determine whether the case calls for this kind of exceptional legislation, and what manner of constructive notice shall be sufficient to reasonably apprise the party proceeded against of the legal steps which are taken against him."
*743 In Happy v. Mosher, 48 id. 313, the court say:
"An approved definition of due process of law is `law in its regular administration through courts of justice.' 2 Kent, Com. 13. It need not be a legal proceeding according to the course of the common law, neither must there be personal notice to the party whose property is in question. It is sufficient if a kind of notice is provided by which it is reasonably probable that the party proceeded against will be apprised of what is going on against him, and an opportunity afforded him to defend."
The same language is used in Westervelt v. Gregg, 12 id. 202, and in Campbell v. Evans, 45 id. 356. Campbell v. Evans and The Empire City Bank are cases not of proceedings against property to enforce a lien or claim; but in each of them a personal judgment in damages was rendered against the party complaining.
It is undoubtedly true, that, in many cases where the question respecting due process of law has arisen, the case in hand was that of a proceeding in rem. It is true, also, as is asserted, that the process of a State cannot be supposed to run beyond its own territory. It is equally true, however, that, in every instance where the question has been presented, the validity of substituted service, which is used to subject property within the State belonging to a non-resident to a judgment obtained by means thereof, has been sustained. I have found no case in which it is adjudged that a statute must require a preliminary seizure of such property as necessary to the validity of the proceeding against it, or that there must have been a previous specific lien upon it; that is, I have found no case where such has been the judgment of the court upon facts making necessary the decision of the point. On the contrary, in the case of the attachment laws of New York and of New Jersey, which distribute all of the non-resident's property, not merely that levied on by the attachment, and in several of the reported cases already referred to, where the judgment was sustained, neither of these preliminary facts existed.
The case of Galpin v. Page, reported in 18 Wall. 350, and again in 3 Sawyer, 93, is cited in hostility to the views I have expressed. There may be general expressions which will justify *744 this suggestion, but the judgment is in harmony with those principles. In the case as reported in this court, it was held that the title of the purchaser under a decree against a non-resident infant was invalid, for two reasons: 1st, That there was no jurisdiction of the proceeding under the statute of California, on account of the entire absence of an affidavit of non-residence, and of diligent inquiry for the residence of the debtor; 2d, the absence of any order for publication in Eaton's case, both of which are conditions precedent to the jurisdiction of the court to take any action on the subject. The title was held void, also, for the reason that the decree under which it was obtained had been reversed in the State court, and the title was not taken at the sale, nor held then by a purchaser in good faith, the purchase being made by one of the attorneys in the suit, and the title being transferred to his law partner after the reversal of the decree. The court held that there was a failure of jurisdiction in the court under which the plaintiff claimed title, and that he could not recover. The learned justice who delivered the opinion in the Circuit Court and in this court expressly affirms the authority of a State over persons not only, but property as well, within its limits, and this by means of a substituted service. The judgment so obtained, he insists, can properly be used as a means of reaching property within the State, which is thus brought under the control of the court and subjected to its judgment. This is the precise point in controversy in the present action.
The case of Cooper v. Reynolds, 10 Wall. 308, is cited for the same purpose. There the judgment of the court below, refusing to give effect to a judgment obtained upon an order of publication against a non-resident, was reversed in this court. The suit was commenced, or immediately accompanied (it is not clear which), by an attachment which was levied upon the real estate sold, and for the recovery of which this action was brought. This court sustained the title founded upon the suit commenced against the non-resident by attachment. In the opinion delivered in that case there may be remarks, by way of argument or illustration, tending to show that a judgment obtained in a suit not commenced by the levy of an attachment will not give title to land purchased under it. They are, *745 however, extra-judicial, the decision itself sustaining the judgment obtained under the State statute by publication.
Webster v. Reid, 11 How. 437, is also cited. There the action involved the title to certain lands in the State of Iowa, being lands formerly belonging to the half-breeds of the Sac and Fox tribes; and title was claimed against the Indian right under the statutes of June 2, 1838, and January, 1839. By these statutes, commissioners were appointed who were authorized to hear claims for accounts against the Indians, and commence actions for the same, giving a notice thereof of eight weeks in the Iowa "Territorial Gazette," and to enter up judgments which should be a lien on the lands. It was provided that it should not be necessary to name the defendants in the suits, but the words "owners of the half-breed lands lying in Lee County" should be a sufficient designation of the defendants in such suits; and it provided that the trials should be by the court, and not by a jury. It will be observed that the lands were not only within the limits of the territory of Iowa, but that all the Indians who were made defendants under the name mentioned were also residents of Iowa, and, for aught that appears to the contrary, of the very county of Lee in which the proceeding was taken. Non-residence was not a fact in the case. Moreover, they were Indians, and, presumptively, not citizens of any State; and the judgments under which the lands were sold were rendered by the commissioners for their own services under the act.
The court found abundant reasons, six in number, for refusing to sustain the title thus obtained. The act was apparently an attempt dishonestly to obtain the Indian title, and not intended to give a substitution for a personal service which would be likely, or was reasonably designed, to reach the persons to be affected.
The case of Voorhees v. Jackson, 10 Pet. 449, affirmed the title levied under the attachment laws of Ohio, and laid down the principle of assuming that all had been rightly done by a court having general jurisdiction of the subject-matter.
In Cooper v. Smith, 25 Iowa, 269, it is said, that where no process is served on the defendant, nor property attached, nor garnishee charged, nor appearance entered, a judgment based *746 on a publication of the pendency of the suit will be void, and may be impeached, collaterally or otherwise, and forms no bar to a recovery in opposition to it, nor any foundation for a title claimed under it. The language is very general, and goes much beyond the requirement of the case, which was an appeal from a personal judgment obtained by publication against the defendant, and where, as the court say, the petition was not properly verified. All that the court decided was that this judgment should be reversed. This is quite a different question from the one before us. Titles obtained by purchase at a sale upon an erroneous judgment are generally good, although the judgment itself be afterwards reversed. McGoon v. Scales, 9 Wall. 311.
In Darrance v. Preston, 18 Iowa, 396, the distinction is pointed out between the validity of a judgment as to the amount realized from the sale of property within the jurisdiction of the court and its validity beyond that amount. Picquet v. Swan, 5 Mas. 35; Bissell v. Briggs, 9 Mass. 462; Ewer v. Coffin, 1 Cush. (Mass.) 23, are cited; but neither of them in its facts touches the question before us.
In Drake on Attachment, the rule is laid down in very general language; but none of the cases cited by him will control the present case. They are the following:
Eaton v. Bridger, 33 N.H. 228, was decided upon the peculiar terms of the New Hampshire statute, which forbids the entry of a judgment, unless the debtor was served with process, or actually appeared and answered in the suit. The court say the judgment was "not only unauthorized by law, but rendered in violation of its express provisions."
Johnson v. Dodge was a proceeding in the same action to obtain a reversal on appeal of the general judgment, and did not arise upon a contest for property sold under the judgment. Carleton v. Washington Insurance Co., 35 id. 162, and Bruce v. Cloutman, 45 id. 37, are to the same effect and upon the same statute.
Smith v. McCutchen, 38 Mo. 415, was a motion in the former suit to set aside the execution by a garnishee, and it was held that the statute was intended to extend to that class of cases. Abbott v. Shepard, 44 id. 273, is to the same effect, and is based upon Smith v. McCutchen, supra.
*747 So in Eastman v. Wadleigh, 65 Me. 251, the question arose in debt on the judgment, not upon a holding of land purchased under the judgment. It was decided upon the express language of the statute of Maine, strongly implying the power of the legislature to make it otherwise, had they so chosen.
It is said that the case where a preliminary seizure has been made, and jurisdiction thereby conferred, differs from that where the property is seized at the end of the action, in this: in the first case, the property is supposed to be so near to its owner, that, if seizure is made of it, he will be aware of the fact, and have his opportunity to defend, and jurisdiction of the person is thus obtained. This, however, is matter of discretion and of judgment only. Such seizure is not in itself notice to the defendant, and it is not certain that he will by that means receive notice. Adopted as a means of communicating it, and although a very good means, it is not the only one, nor necessarily better than a publication of the pendency of the suit, made with an honest intention to reach the debtor. Who shall assume to say to the legislature, that if it authorizes a particular mode of giving notice to a debtor, its action may be sustained, but, if it adopts any or all others, its action is unconstitutional and void? The rule is universal, that modes, means, questions of expediency or necessity, are exclusively within the judgment of the legislature, and that the judiciary cannot review them. This has been so held in relation to a bank of the United States, to the legal-tender act, and to cases arising under other provisions of the Constitution.
In Jarvis v. Barrett, 14 Wis. 591, such is the holding. The court say:
"The essential fact on which the publication is made to depend is property of the defendant in the State, and not whether it has been attached... . There is no magic about the writ [of attachment] which should make it the exclusive remedy. The same legislative power which devised it can devise some other, and declare that it shall have the same force and effect. The particular means to be used are always within the control of the legislature, so that the end be not beyond the scope of legislative power."
If the legislature shall think that publication and deposit in the post-office are likely to give the notice, there seems to be *748 nothing in the nature of things to prevent their adoption in lieu of the attachment. The point of power cannot be thus controlled.
That a State can subject land within its limits belonging to non-resident owners to debts due to its own citizens as it can legislate upon all other local matters; that it can prescribe the mode and process by which it is to be reached, seems to me very plain.
I am not willing to declare that a sovereign State cannot subject the land within its limits to the payment of debts due to its citizens, or that the power to do so depends upon the fact whether its statute shall authorize the property to be levied upon at the commencement of the suit or at its termination. This is a matter of detail, and I am of opinion, that if reasonable notice be given, with an opportunity to defend when appearance is made, the question of power will be fully satisfied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/528894/ | 884 F.2d 1288
UNITED STATES of America, Plaintiff-Appellee,v.Lino CATABRAN, Defendant-Appellant.
No. 88-1284.
United States Court of Appeals,Ninth Circuit.
Submitted August 31, 1989.*Decided Sept. 8, 1989.
David W. Dratman, Sacramento, Cal., for defendant-appellant.
John Panneton, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of California.
Before TANG, NELSON and REINHARDT, Circuit Judges.
PER CURIAM:
1
In a prior appeal by Lino Catabran, we affirmed his jury conviction of concealment of assets during a bankruptcy proceeding (count II) and destruction and concealment of records of a bankrupt corporation (count IV), both in violation of 18 U.S.C. Sec. 152 (1982). United States v. Catabran, 836 F.2d 453, 461 (9th Cir.1988). The district court had sentenced Catabran to an 18-month prison term on count IV and 5 years' probation on count II. Catabran now appeals the district court's denial of his post-appeal Fed.R.Crim.P. 32 motion to correct his presentence report and his Fed.R.Crim.P. 35 motion to reduce his 18-month prison term. We affirm.
A. Fed.R.Crim.P. 32 Motion
2
For the first time in his post-appeal Rule 32 motion, Catabran challenged the accuracy of information contained in his presentence report which allegedly implies that the value of the inventory and other assets which he converted was approximately $330,000.
3
Rule 32 sets forth the procedure which the district court must follow when a defendant alleges any factual inaccuracy in a presentence report. See Fed.R.Crim.P. 32(c)(3)(D); United States v. Stewart, 799 F.2d 580, 581 (9th Cir.1986). However, Rule 32 "allows the defendant to challenge factual inaccuracies during imposition of the sentence, not later."1 United States v. Freeny, 841 F.2d 1000, 1002 (9th Cir.1988) (per curiam). Although Freeny involved a challenge to a post-sentence report, we believe that the reasoning in Freeny applies equally to a presentence report. Thus, once the district court has imposed sentence, the court lacks jurisdiction under Rule 32 to hear challenges to a presentence report.2 See id. Accordingly, the district court did not err in denying Catabran's Rule 32 motion. See id. at 1001-02.
B. Fed.R.Crim.P. 35 Motion
4
We ordinarily do not review a sentence that falls within the statutory limits absent constitutional concerns. United States v. Meyers, 847 F.2d 1408, 1416 (9th Cir.1988). Here, Catabran's sentence is within the statutory maximum. See 18 U.S.C. Sec. 152. Further, he asserts no constitutional claim.
5
In addition, Catabran argues for the first time on appeal that the district court should have decided his Rule 35 motion without considering the allegedly incorrect value of converted property set forth in the presentence report.3 However, Catabran failed to present this issue at the time of sentencing and offers no reason for failing to do so. In these circumstances, the district court did not abuse its discretion by denying Catabran's Rule 35 motion. See United States v. Gonzales, 765 F.2d 1393, 1395-96 (9th Cir.1985), cert. denied, 474 U.S. 1068, 106 S.Ct. 826, 88 L.Ed.2d 798 (1986).
6
AFFIRMED.
*
The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed.R.App.P. 34(a)
1
The record indicates that before sentencing, Catabran corrected one factual inaccuracy in the presentence report and then informed the district court that there were no other factual inaccuracies
2
Although in the district court Catabran expressed a concern that the challenged information will have an adverse effect when he is considered for parole, his recourse is to contest this presentence report information before the Parole Commission. See 28 C.F.R. Sec. 2.19(c) (1988). We understand that Catabran may by now have already challenged the disputed information at a parole hearing
3
We note that the record indicates that the district court's decision to deny Catabran's Rule 35 motion apparently was not based upon the alleged value of the converted property | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/543483/ | 905 F.2d 1538
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.The SPITZER BUILDING COMPANY, Plaintiff-Appellant,v.DOVER ELEVATOR COMPANY, Defendant-Appellee.
No. 89-3738.
United States Court of Appeals, Sixth Circuit.
June 29, 1990.
Before KENNEDY and RYAN, Circuit Judges; and JULIAN A. COOK, Jr., District Judge.*
RYAN, Circuit Judge.
1
Plaintiff, The Spitzer Building Company, appeals the judgment for defendant, Dover Elevator Company, in this breach of contract action. The court, following a bench trial, awarded defendant $3,500 on its counterclaim against plaintiff for anticipatory breach of contract. We affirm.
I.
2
Plaintiff owns and operates an office building, The Spitzer Building, in Toledo, Ohio. The building's six elevators, three passenger elevators in the front lobby and two passenger and one freight elevator in the back, were installed in the 1920s and were modernized in the 1950s.
3
Otis Elevator Company (Otis), defendant's competitor, maintained the elevators pursuant to a "full maintenance" contract with plaintiff after the 1950 modernization and until 1969. In 1969, plaintiff replaced the Otis full maintenance contract with a "parts, oil and grease" contract from Kerscher Elevator Company (Kerscher), defendant's predecessor. Plaintiff replaced the "full maintenance" agreement with the more limited and cheaper "parts, oil and grease" contract because the building had several vacancies and the elevators were operating satisfactorily.
4
Beginning in 1975, the three front passenger elevators experienced operational problems and attempts by Kerscher to make repairs proved unsatisfactory. The problems got progressively worse. Fifty percent of the problems involved the door operator system. In 1979, plaintiff rejected Kerscher's recommendation that the door operator system be upgraded. In 1980, the "parts, oil and grease" contract was modified and plaintiff opted for the scaled-down economy version of an oil and grease contract.
5
On June 1, 1981, the oil and grease contract between plaintiff and Kerscher was replaced by a "full maintenance" contract. By its terms it was renewable annually and could be terminated, upon thirty-day notice, effective June 1. The contract included twenty-four hour call back privileges and provided, in pertinent part:
6
We will systematically and regularly examine, adjust, lubricate as required, and if conditions warrant, repair and replace the following:
7
Elevator machine; elevator motor; generator; controller parts; gears; worms; bearings; rotating elements; thrusts; brake magnet coils; brake magnet stators; brake shoes and linings; commutators and brushes; windings and coils; contacts and magnet frames; resistance for motor and operator circuits.
8
* * *
9
* * *
10
We shall not be required to make repairs or renewals necessitated because of negligence or misuse of the machinery, equipment or car due to any other cause beyond our control except ordinary wear.
11
* * *
12
* * *
13
The following items of equipment are not included in this agreement: Refinishing, replacing, or repairing of elevator car enclosures, car door panels, hoistway enclosures, hydraulic cylinder and all underground piping, hoistway door panels, frame and sills.
14
The contract also included the repairs outlined in "Attachment A." Attachment A set forth a list of nine repairs Kerscher agreed to make to the three front passenger elevators for no extra charge; the repairs were to be completed by December 31, 1981.
15
On April 14, 1982, Kerscher notified plaintiff that the work set forth in Attachment A was completed. The trial court found that "plaintiff did not challenge Kerscher's representation and believed that the work had been done. The items which could be confirmed by visual inspection had been done."
16
The full maintenance contract was renewed annually. The elevators still had mechanical problems; plaintiff called Kerscher frequently to report problems with the elevator service but never complained to Kerscher about the service or maintenance provided.
17
On December 24, 1984, Kerscher assigned the full maintenance contract to defendant, Dover Elevator Company. The contract of assignment provided:
18
(c) Seller alone shall continue to remain and be responsible for all of its past, current and future liabilities of any kind whatsoever, whether accrued, contingent or otherwise, including without limitation:
19
* * *
20
* * *
21
(iv) the obligation to comply with all the responsibilities terms and conditions of the service and maintenance contract listed in Exhibit "A" up to the effective time of closing.
22
The trial court found this clause "obligated Kerscher to comply with all of the terms and conditions of the maintenance contract through January 1, 1985 and imposed only a prospective duty on the part of defendant."
23
Plaintiff was given written notice of the contract assignment to defendant on January 1, 1985. Plaintiff thought service would improve; however, the same problems persisted.
24
By 1985, the elevators needed extensive repair and renovation. Defendant submitted at least three proposals to replace existing equipment, particularly door operation equipment; all proposals were rejected by plaintiff. Plaintiff contacted Otis, the company that serviced the elevators before 1969, and Otis submitted a repair proposal for the three front elevators in September 1985 with the understanding that plaintiff would sign a five year maintenance contract with Otis. Otis had required that $64,675 worth of repairs be done before it would enter into a maintenance contract. The repair work was done and a full maintenance agreement was signed with Otis on February 28, 1986. Following the repairs, the elevators ran satisfactorily.
25
During this time, defendant continued to provide maintenance under its contract with plaintiff. On February 26, 1986, plaintiff notified defendant that it was cancelling its full maintenance agreement effective March 1, 1986 because of defendant's failure to perform its obligations under the contract.
II.
26
Plaintiff then brought this breach of contract action to recover the $64,675, the cost of the pre-maintenance contract repairs completed by Otis. Plaintiff claimed the repairs made by Otis were the repairs listed in Attachment A to the full maintenance contract of 1981 and purportedly completed by Kerscher in 1982. Plaintiff contended that defendant assumed all obligations of Kerscher under the assignment contract of January 1985 but failed to perform the required maintenance and repairs through February 1986. Plaintiff also sought lost profits of $25,000 because two tenants vacated the premises, primarily because of the poorly operating elevators. The claim for lost profits was dismissed by the trial court and not raised as an issue on appeal.
27
Defendant filed a counterclaim claiming plaintiff anticipatorily breached its maintenance contract with defendant. The contract provided that either party could cancel the agreement upon thirty days notice effective June 1. Defendant claimed plaintiff breached the contract by giving defendant notice in late February 1986 that its contract was terminated effective March 1, 1986, and that plaintiff owed four months of compensation at the monthly rate of $1,240.49 for a total of $4,961.96.
28
Following a bench trial, the trial court found in favor of defendants on plaintiff's breach of contract claim and awarded defendants $3,500 on its counterclaim against plaintiff for anticipatory breach of contract.
III.
29
After a careful review of the record and after considering the district court's findings of fact and conclusions of law, we AFFIRM the judgment dismissing the plaintiff's claim and awarding judgment against the plaintiff in the defendants' counterclaim for the reasons set forth in the district court's well-written and soundly reasoned opinion. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2861563/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00425-CR
NO. 03-97-00426-CR
NO. 03-97-00427-CR
Larry Ray Brown, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW OF CALDWELL COUNTY
NOS. 23,821, 24,396 & 24,548, HONORABLE EDWARD L. JARRETT, JUDGE PRESIDING
At a consolidated trial, the jury found appellant Larry Ray Brown guilty of assault, theft,
and criminal trespass. See Tex. Penal Code Ann. §§ 22.01(a)(1), 30.05(a)(1), 31.03(a) (West 1994).
The county court at law assessed punishment for these offenses at incarceration for 365 days and a $250
fine, incarceration for 180 days and a $500 fine, and incarceration for 180 days and a $500 fine,
respectively.
Appellant brings forward two points of error relevant only to the theft conviction, by which
he complains of the erroneous admission of evidence and an improper jury charge. His third point, that the
court should have conducted a hearing into his competence to stand trial, is relevant to all three convictions.
We will overrule the points of error and affirm.
In the theft prosecution, appellant was found guilty of stealing a video camcorder from a
repair shop in Lockhart. Appellant was a frequent visitor to the shop, the owner of which he had known
for years. He had shown a particular interest in this camcorder and had previously been caught attempting
to carry it from the shop. Although no one saw appellant take the camcorder, he obviously succeeded in
this task during one of his visits to the shop. Appellant sold the camcorder at a Lockhart pawn shop the
day the theft was discovered.
In his first point of error, appellant contends the court erred by admitting evidence of
another, extraneous theft. Jane Trejo, a cashier at a Lockhart convenience store, testified that appellant
entered the store on a night one month before the camcorder theft and took her purse while her back was
turned. This incident was recorded by the store's security camera and the videotape was shown to the
jury.
The admissibility of this evidence was first discussed outside the jury's presence. Appellant
objected that Trejo's proffered testimony and the accompanying videotape constituted inadmissible
evidence of extraneous misconduct relevant only to prove his bad character. See Tex. R. Evid. 404(b). (1)
The State responded that the evidence was admissible to show appellant's guilty knowledge or intent, citing
Penal Code section 31.03(c)(1): "[E]vidence that the actor has previously participated in recent
transactions other than, but similar to, that [on] which the prosecution is based is admissible for the purpose
of showing knowledge or intent and the issues of knowledge or intent are raised by the actor's plea of not
guilty." Tex. Penal Code Ann. § 31.03(c)(1) (West Supp. 1998). Appellant's objection was overruled,
the jury returned to the courtroom, and Trejo testified. At the conclusion of her direct testimony, the State
offered the videotape in evidence. Defense counsel responded, "[W]e have no objections to the tape, but
I would like to renew my objections to this entire line of questioning."
Appellant urges that his theft of Trejo's purse was not sufficiently similar to the charged
offense to be admissible under section 31.03(c)(1), and that the probative value of the evidence was
outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. The latter contention was not
presented to the trial court and therefore was not preserved for review. Tex. R. App. P. 33.1(a). Any
other error with respect to the admission of the videotape was waived when appellant announced that he
had "no objections to the tape." James v. State, 772 S.W.2d 84, 97 (Tex. Crim. App. 1989). Finally,
any error in the admission of Trejo's testimony was rendered harmless by the admission without objection
of the videotape showing appellant stealing her purse. Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim.
App. 1991). Point of error one is overruled.
The court's theft charge included an instruction admonishing the jury not to consider
evidence of any other transaction unless it found beyond a reasonable doubt that appellant engaged in that
transaction, and limiting the jury's consideration of the other transaction to the issue of appellant's
knowledge or intent. Appellant did not object to this instruction, but now complains that it was defective
because it did not require the jury to find that the uncharged transaction was "recent" and "similar" to the
charged theft, as required by section 31.03(c)(1). As authority, appellant cites the opinion in Villanueva
v. State, 768 S.W.2d 900, 902 (Tex. App.--San Antonio 1989, pet. ref'd), in which the court held that
the omission of these words from a section 31.03(c)(1) limiting instruction, over objection, was reversible
error.
Villanueva is distinguishable because appellant did not object to the court's instruction.
Thus, he bears the burden of demonstrating that the alleged error was so egregious and caused him such
harm as to deny him a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
1985) (opinion on rehearing). That burden has not been met. The theft of Trejo's purse was certainly
"recent," having happened only one month before appellant stole the camcorder. It was also "similar," in
that on both occasions appellant entered a store and committed a theft when the attendant was distracted.
Even if we assume the jury would not have found the extraneous theft "recent" or "similar," it is unlikely that
the jury would have reached a different verdict given the other evidence of appellant's guilt. Point of error
two is overruled.
Finally, appellant contends the court erred by failing to conduct a hearing on his
competency to stand trial. The hearing to which appellant refers is the preliminary judicial determination
whether there is evidence to support a finding of incompetence. Tex. Code Crim. Proc. Ann. art. 46.02,
§§ 1, 2(a) (West 1979). Appellant did not move for such a determination, and therefore the question
presented is whether the court should have acted on its own motion.
The record reflects that prior to trial of these causes, appellant was committed to the Austin
State Hospital under an emergency commitment. The reason for this commitment is not shown. Upon
learning of the commitment, the court appointed a psychiatrist to examine appellant and determine his
competency to stand trial. The expert submitted a written report expressing the opinion that appellant was
competent within the meaning of the statute. Thus, the only relevant evidence before the court was that
appellant was competent to stand trial. Absent any evidence of incompetence, the court did not err by
failing to conduct a section 2(a) hearing on its own motion. See Thompson v. State, 612 S.W.2d 925,
927 (Tex. Crim. App. 1981); Rodriquez v. State, 816 S.W.2d 493, 495 (Tex. App.--Waco 1991, pet.
ref'd). Point of error three is overruled.
The judgments of conviction are affirmed.
Bea Ann Smith, Justice
Before Justices Powers, Aboussie and B. A. Smith
Affirmed
Filed: March 26, 1998
Do Not Publish
1. Insofar as they apply to this appeal, the rules of evidence adopted March 1, 1998, are identical to
the former rules of criminal evidence in effect at the time of trial.
Appellant's objection was overruled,
the jury returned to the courtroom, and Trejo testified. At the conclusion of her direct testimony, the State
offered the videotape in evidence. Defense counsel responded, "[W]e have no objections to the tape, but
I would like to renew my objections to this entire line of questioning."
Appellant urges that his theft of Trejo's purse was not sufficiently similar to the charged
offense to be admissible under section 31.03(c)(1), and that the probative value of the evidence was
outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. The latter contention was not
presented to the trial court and therefore was not preserved for review. Tex. R. App. P. 33.1(a). Any
other error with respect to the admission of the videotape was waived when appellant announced that he
had "no objections to th | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1625452/ | 464 So. 2d 1185 (1985)
STATE of Florida, Petitioner,
v.
Larry E. FITZPATRICK, Respondent.
No. 63752.
Supreme Court of Florida.
February 28, 1985.
Jim Smith, Atty. Gen. and Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, for petitioner.
Dan R. Warren of Judge & Warren, Daytona Beach, for respondent.
OVERTON, Justice.
This is a petition to review a decision reported as Fitzpatrick v. Smith, 432 So. 2d 89 (Fla. 5th DCA 1983), in which the Fifth District Court of Appeal required the disqualification of the entire state attorney's office for the Seventh Judicial Circuit from prosecuting Fitzpatrick on the ground that confidential communications relating to the charges against him had been made by him to an attorney who was subsequently hired as an assistant state attorney in that office. The district court's decision affects a class of constitutional officers and we have jurisdiction. Art. V, § 3(b)(3), Fla. Const. For the reasons expressed, we quash the decision of the district court.
Fitzpatrick was arrested on two counts of sale of a controlled substance and conspiracy to traffic in cocaine. While in jail, Fitzpatrick discussed his case with an attorney who was married to Fitzpatrick's ex-wife, but did not employ the attorney to represent him in the matter. The attorney was subsequently hired as an assistant state attorney, after which Fitzpatrick moved to disqualify the entire state attorney's office from prosecuting the case against him under the conflict of interest provisions of the Code of Professional Responsibility.
The trial court held a disqualification hearing and found that the conversations between the attorney and Fitzpatrick were confidential communications of the nature contemplated by Ethical Consideration *1186 4-1[1] and Disciplinary Rule 4-101[2] of the Code of Professional Responsibility. These provisions generally prohibit a lawyer from revealing or using, to a client's disadvantage, the confidences or secrets of a client. The trial court expressly found that the attorney was not involved in the prosecution of the respondent and had not revealed any confidential information to other assistant state attorneys, and refused to disqualify the office, holding that the state attorney's office is not a law firm within the meaning of Disciplinary Rule 5-105(D). That rule provides: "If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment." The district court reversed, holding that the state attorney's office constitutes a law firm within the meaning of Canon 5. The district court analogized state attorney's offices to public defender's offices, which have been held by two district courts of appeal to be law firms under Canon 5. See Roberts v. State, 345 So. 2d 837 (Fla. 3d DCA 1977); Turner v. State, 340 So. 2d 132 (Fla. 2d DCA 1976). The district court acknowledged this Court's decision in Babb v. Edwards, 412 So. 2d 859 (Fla. 1982), in which we held that the language of section 27.53(3), Florida Statutes (Supp. 1980),
clearly and unambiguously requires the trial court to appoint other counsel not affiliated with the public defender's office upon certification by the public defender that adverse defendants cannot be represented by him or his staff without conflict of interest. The statute ... does not permit the appointment of other counsel affiliated with the public defender's office once conflict is certified.
Id. at 862. The district court in the instant case concluded there is no rational distinction between the offices of the state attorney and public defender and "each is a single `firm' for the purposes of Canon 5 of the Code." 432 So.2d at 91.
The state contends that the state attorney's office is not a law firm for purposes of Canon 5, and that disqualification should not extend to the entire office unless the disqualified attorney has acted directly against the former client or provided information or assistance to the attorneys who would prosecute the former client. Fitzpatrick, on the other hand, asserts that even in situations where there is no actual conflict, the existence of the potential for conflict mandates the disqualification of the entire state attorney's office. There is no issue concerning the disqualification of the individual assistant state attorney who received the confidential communications. He is properly disqualified under Canon 4. The question to be decided concerns the disqualification of an entire prosecutorial office. Babb is not controlling or applicable to this cause because that case was decided solely upon an interpretation of a statute which applies only to public defenders' offices, and not upon a determination that the public defender's office is a law firm within the meaning of Canon 5.
*1187 We fully adhere to the view that state attorneys must abide by the same high standards of fidelity imposed by the Code of Professional Responsibility on private practitioners. We find, however, that the Code of Professional Responsibility was intended to recognize a distinction between private law firms and government prosecutorial offices. In so holding, we are in accord with the majority of jurisdictions. See, e.g., People v. Lopez, 155 Cal. App. 3d 813, 202 Cal. Rptr. 333 (1984); State v. Laughlin, 232 Kan. 110, 652 P.2d 690 (1982); Pisa v. Commonwealth, 378 Mass. 724, 393 N.E.2d 386 (1979); Commonwealth v. Miller, 281 Pa.Super. 392, 422 A.2d 525 (1980). But see Collier v. Legakes, 98 Nev. 307, 646 P.2d 1219 (1982).
By requiring disqualification of all members of a law firm under Disciplinary Rule 5-105(D), the authors of the Code sought to prevent disqualified attorneys from circumventing the disciplinary rules by acting through their associates. In Formal Opinion 342, the American Bar Association indicated it did not intend for the imputed disqualification rule to encompass government law offices, and explained the rationale for distinguishing between those offices and private law firms with respect to the application of this disciplinary rule:
When the disciplinary rules of Canons 4 and 5 mandate the disqualification of a government lawyer who has come from private practice, his governmental department or division cannot practicably be rendered incapable of handling even the specific matter. Clearly, if D.R. 5-105(D) were so construed, the government's ability to function would be unreasonably impaired. Necessity dictates that government action not be hampered by such a construction of D.R. 5-105(D). The relationships among lawyers within a government agency are different from those among partners and associates of a law firm. The salaried government employee does not have the financial interest in the success of departmental representation that is inherent in private practice. This important difference in the adversary posture of the government lawyer is recognized by Canon 7: the duty of the public prosecutor to seek justice, not merely to convict, and the duty of all government lawyers to seek just results rather than the result desired by a client. The channeling of advocacy toward a just result as opposed to vindication of a particular claim lessens the temptation to circumvent the disciplinary rules through the action of associates. Accordingly, we construe D.R. 5-105(D) to be inapplicable to other government lawyers associated with a particular government lawyer who is himself disqualified by reason of D.R. 4-101, D.R. 5-105, D.R. 9-101(B), or similar disciplinary rules. Although vicarious disqualification of a government department is not necessary or wise, the individual lawyer should be screened from any direct or indirect participation in the matter, and discussion with his colleagues concerning the relevant transaction or set of transactions is prohibited by those rules.
62 A.B.A.J. 517, 522 (1976) (emphasis added).
We also note that the Model Rules of Professional Conduct,[3] which are currently under consideration by this Court[4] and the adopting authorities of at least forty other states, expressly distinguish between government and non-government lawyers for purposes of imputed disqualification. Model Rule 4-1.11(c), which specifically governs the conduct of attorneys who *1188 move from private practice into government employment, provides that a lawyer serving as a public employee shall not "participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment." The commentary states that the rule "does not disqualify other lawyers in the agency with which the lawyer in question has become associated."
Further, this Court considered the due process ramifications of a directly related issue in Thompson v. State, 246 So. 2d 760 (Fla. 1971), in which we held that
the State Attorney can only be disqualified if it were shown that as Public Defender he had actually gained confidential information from a prior attorney-client relationship with the defendant, which information would be usable in the new matter to defendant's prejudice.
Id. at 763 (quoting State v. Bryan, 227 So. 2d 221, 223 (Fla. 2d DCA 1969)). The Court continued:
The twofold prohibition enunciated in Bryan that a former defender turned prosecutor can neither act directly against his former client in a related matter, nor provide information or assistance for those who would so act provides a logical answer to the abstract question. The standard for a prosecutor should also be the standard for his staff, and we so hold. Therefore, we find that employment of a former defender on the prosecution staff does not violate due process save where the two provisions set out above are violated.
246 So.2d at 763.
In the instant case, the trial court found that confidential communications transpired between the attorney and Fitzpatrick, and it is undisputed that these communications related to the criminal case that is currently being prosecuted. We find, however, that imputed disqualification of the entire state attorney's office is unnecessary when the record establishes that the disqualified attorney has neither provided prejudicial information relating to the pending criminal charge nor has personally assisted, in any capacity, in the prosecution of the charge. Further, we expressly approve the construction of Canon 5 contained in the American Bar Association's Formal Opinion 342.
For the reasons expressed, we quash the decision of the district court and remand with directions to reinstate the judgment of the trial court.
It is so ordered.
BOYD, C.J., and ADKINS, ALDERMAN and McDONALD, JJ., concur.
EHRLICH, J., dissents with an opinion, in which SHAW, J., concurs.
EHRLICH, Justice, dissenting.
I would approve the decision of the district court of appeal. I believe the majority misses the philosophical point of Canon 4 and that the result of the decision here will be to further erode public confidence in our justice system.
All attorneys, public and private, are bound by Canon 9 to "avoid even the appearance of professional impropriety." As Ethical Consideration 9-1 states: "Continuation of the American concept that we are to be governed by rules of law requires that the people have faith that justice can be obtained through our legal system. A lawyer should promote public confidence in our system and in the legal profession." Although we are convinced that in this case no actual breach of client confidentiality has occurred or would have occurred, we are not the forum in need of convincing. To the public at large, the potential for betrayal in itself creates the appearance of evil, which in turn calls into question the integrity of the entire judicial system. When defendants no longer have absolute faith that all confidential communication with counsel will remain forever inviolate, no candid communication will transpire, and the guarantee of effective assistance of counsel will become meaningless. This is too high a cost for society to bear.
*1189 On the other hand, the cost of disqualification of the state attorney is relatively minimal. Section 27.14, Florida Statutes (1981), provides for assignment of a state attorney from one circuit to another where the state attorney has been disqualified. This process is frequently used and is entirely appropriate here.
Both parties concede that Kimball would be required to disqualify himself from any prosecution of Fitzpatrick. The state argues that only Kimball should be disqualified unless Fitzpatrick can demonstrate the actual betrayal of his confidences. The majority quotes Thompson v. State, 246 So. 2d 760 (Fla. 1971), in which this Court embraced a standard test for disqualification. Unfortunately, Thompson's rephrasing of the Bryan test subtly shifts the focus from whether the confidential information gained in the prior relationship is usable against the defendant to whether that information is actually used against him. The effect is to shift to the defendant the burden of proving a resulting prejudice. In spite of the state's repeated assurance at oral argument that the state would bear the burden of proving non-use of the confidential information, I agree with the district court's analysis of the situation.
Where there is a claim that confidential conversations within the scope of the attorney-client privilege were had with an attorney who subsequently became employed by the state attorney's office, the defendant cannot be expected to disclose the nature of these conversations in order to establish this "basic unfairness." To require the defendant to come forward with allegations or proof that the attorney has or will disclose such confidences necessarily requires disclosure of much of the privileged information. This would destroy the very confidentiality he seeks to protect. We think it is sufficient to show there were confidential communications and they related to matters now on trial. Whether the attorney would violate those confidences and reveal the substance of them to other members of the office is not a subject of inquiry.
432 So.2d at 90. To the extent it would require inquiry into "whether the attorney would violate those confidences," we should recede from Thompson. The trial court found that there were confidential communications. Indisputably, these related to matters now on trial. The state attorney was properly disqualified.
SHAW, J., concurs.
NOTES
[1] Ethical Consideration 4-1 provides:
Both the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidences and secrets of one who has employed or sought to employ him. A client must feel free to discuss whatever he wishes with his lawyer and a lawyer must be equally free to obtain information beyond that volunteered by his client. A lawyer should be fully informed of all the facts of the matter he is handling in order for his client to obtain the full advantage of our legal system. It is for the lawyer in the exercise of his independent professional judgment to separate the relevant and important from the irrelevant and unimportant. The observance of the ethical obligation of a lawyer to hold inviolate the confidences and secrets of his client not only facilitates the full development of facts essential to proper representation of the client but also encourages laymen to seek early legal assistance.
[2] Disciplinary Rule 4-101(B) provides:
Except when permitted under DR 4-101(C) and (D), a lawyer shall not knowingly:
(1) Reveal a confidence or secret of his client.
(2) Use a confidence or secret of his client to the disadvantage of the client.
(3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.
[3] The Model Rules of Professional Conduct, which were adopted by the American Bar Association in August, 1983, were designed to replace the American Bar Association Code of Professional Conduct.
[4] The Florida Bar re: Code of Professional Responsibility, No. 65,877. In 1981, a special committee was appointed by The Florida Bar to study the Model Rules of Professional Conduct formulated by the American Bar Association. In July, 1984, The Florida Bar Board of Governors petitioned this Court to adopt a modified version of the American Bar Association Model Rules. This Court has not yet ruled on the matter. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2442461/ | 6 A.3d 904 (2010)
416 Md. 273
STEVEN CARVER
v.
STATE.
Pet. Docket No. 317.
Court of Appeals of Maryland.
Denied October 22, 2010.
Petition for Writ of Certiorari denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2306715/ | 980 A.2d 111 (2009)
PLUNKARD
v.
McCONNELL.
No. 577 WAL (2008).
Supreme Court of Pennsylvania.
July 1, 2009.
Disposition of petition for allowance of appeal Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2347930/ | 381 A.2d 1372 (1977)
Gary KOPFF et al., Petitioners,
v.
DISTRICT OF COLUMBIA ALCOHOLIC BEVERAGE CONTROL BOARD et al., Respondents,
C. J. K., Incorporated, Intervenor.
No. 11374.
District of Columbia Court of Appeals.
Argued September 23, 1977.
Decided December 30, 1977.
Rehearing Denied March 6, 1978.
*1373 Sari B. Marmur, with whom Jason Newman and Johnny Barnes were on the briefs, for petitioners.
Edward E. Schwab, Asst. Corp. Counsel, Washington, D. C., with whom John R. Risher, Jr., Corp. Counsel, Louis P. Robbins, Principal Deputy Corp. Counsel, and Richard W. Barton, Deputy Corp. Counsel, Washington, D. C., were on the brief, for respondent District of Columbia Alcoholic Beverage Control Board.
J. E. Bindeman, Washington, D. C., with whom Leonard W. Burka and Stuart L. Bindeman, Washington, D. C., were on the brief, for intervenor.
Before KELLY, NEBEKER, and FERREN, Associate Judges.
FERREN, Associate Judge:
We are presented with a petition to review the issuance of a "Class C" liquor *1374 license by the Alcoholic Beverage Control Board ("ABC Board") to the intervenor, C.J.K., Inc. ("C.J.K."). Many of the questions presented involve commonly alleged procedural irregularities; the central issue, however, is a matter of first impression the role of the recently created Advisory Neighborhood Commissions ("ANCs") in ABC Board hearings. For reasons elaborated below, we remand this proceeding to the ABC Board for a new hearing, in order to cure defects in the notice of the hearing on original issuance of the license, and to assure that the Board gives "great weight" to the "issues and concerns" of the ANC, as required by statute. We do not, however, order revocation of C.J.K.'s license; it shall remain in effect pending the outcome of the next hearing.
Our discussion proceeds as follows: Part I describes the ABC Board proceedings at issue. Part II considers the capacity of ANCs to petition for judicial review, the standing of area residents to assert violations of ANC rights, and the alleged mootness of the present petition. Part III covers questions about noticethe failure of the ABC Board to give "special notice" to affected ANCs, to give personal notice to known remonstrants, and to post notice on C.J.K.'s premises. Part IV addresses questions about the Board's obligation to give "great weight" to the "issues and concerns" of affected ANCs. Part V deals with the Board's evidentiary rulings, particularly the exclusion of an ANC resolution, of a neighborhood survey of residents' views, and of certain data respecting the impact of a Metro station under construction nearby. Finally, Part VI discusses the adequacy of the ABC Board's findings and conclusions.
I. ABC Board Proceedings
The intervenor, C.J.K., intending to operate an Irish family restaurant, applied on April 22, 1976, for a Class C liquor license for the premises located at 3412 Connecticut Avenue, N.W.[1] As required by statute, D.C.Code 1973, § 25-115(b), the ABC Board posted and published notice of the date for hearing on the application, May 20, 1976. Two neighborhood residents, Judy and Gary Kopff, are among the petitioners here.[2] They collected the signatures of thirty-eight remonstrants on a petition opposing the grant of the license, and submitted the petition to the Board.[3]
For reasons apparently connected with the substantial protest, the ABC Board rescheduled the hearing for June 9, 1976. The Board published notice of the rescheduling, as required, and also personally notified Judy Kopff; but the Board did not notify other known remonstrants or post notice of the new date on the premises. After conducting a contested hearing on June 9, 1976, during which nine individuals testified for the applicant and four remonstrants testified against, the Board determined, by findings of fact and conclusions of law, that the location was "appropriate for the license desired." On September 21, 1976, the Board ordered that the license be issued "upon compliance by the applicant with all remaining requirements of this and other appropriate municipal agencies." C.J.K. complied, and the license eventually was issued on January 14, 1977.[4] In the *1375 meantime, this petition for judicial review had been filed on October 6, 1976. See D.C.Code 1977 Supp., § 1510; D.C.App.R. 15.
II. ANC Capacity to Petition for Judicial Review; Alleged Mootness of the Petition
The ABC Board and C.J.K. have raised two potential barriers to this court's resolving the issues raised by the petitioners. First, they contend that the ANCs and the ANC Commissioners ought to be dismissed as parties to this proceeding because D.C. Code 1977 Supp., § 1-171i(g) precludes ANCs from initiating court actions. Second, they maintain that the expiration of the 1976-77 license and unprotested issuance of a 1977-78 license to C.J.K. have mooted the petition. Before considering the merits of petitioners' arguments, therefore, we must resolve these two issues.
A. Capacity to Initiate Legal Action
The Duties and Responsibilities of the Advisory Neighborhood Commissions Act of 1975, D.C.Law 1-58, March 26, 1976, now codified in D.C.Code 1977 Supp., § 1-171a et seq. (the "ANC Act"), contains a specific prohibition against initiation of legal actions by ANCs. The pertinent subsection states:
The Commission shall not have the power to initiate a legal action in the Courts of the District of Columbia or in the Federal courts, provided that this limitation does not apply to or prohibit any Commission from bringing suit as a citizen.[5] The Commission may petition the Council through the Special Committee on Advisory Neighborhood Commissions or such successor committee should the Commission feel legal redress is required. [D.C.Code 1977 Supp., § 1-171i(g).]
The ABC Board and C.J.K. maintain that this language forbids the ANCs and ANC Commissioners to file the present petition.
Petitioners counter by arguing that the petition for review is not an "initiation" of legal action within the meaning of § 1-171i(g); they say it is a secondary, follow-up step in a process initiated by C.J.K.'s filing of a liquor license application and the ABC Board's holding of an administrative hearing. In support of this contention, petitioners assert that the statutory purpose behind the institution of ANCsi. e., the creation of "grass roots" organizations capable of identifying and communicating local opinions to legislative and administrative officialswill be defeated if ANCs are not able to seek judicial vindication of their statutory rights when administrative agencies ignore them. As further support for their interpretation, petitioners note that judicial review of administrative determinations is favored; thus, any legislative intention to abridge such review must be shown by clear and convincing evidence. Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967); Rusk v. Cort, 369 U.S. 367, 82 S. Ct. 787, 7 L. Ed. 2d 809 (1962). Petitioners can perceive no intention in § 1-171i(g) to deny ANCs the generous review provisions of the District of Columbia Administrative Procedure Act (the "DCAPA"). D.C.Code 1977 Supp., § 1-1510. In the context of agency action, therefore, they read § 1-171i(g) to forbid only collateral attacks in court, not judicial review.
Initially, we acknowledge the general availability of judicial review of agency decisions. The DCAPA affords such review to "[a]ny person suffering a legal wrong, or adversely affected or aggrieved, by an order or decision of the Mayor or an agency in a contested case . . . ." D.C.Code 1977 Supp., § 1-1510. The "persons" entitled to *1376 review include "public or private organizations of any character . . . ." D.C. Code 1977 Supp. § 1-1502(b)(9). By the terms of this section alone, ANCs clearly would have the capacity to petition this court for review. Section 1-171i(g), however, was enacted after the DCAPA and constitutes a specific limitation on the power of an ANC to litigate. Therefore, if § 1-171i(g) applies to petitions for court review of administrative action, it supersedes the DCAPA.
We conclude that § 1-171i(g) does proscribe such petitions. ANCs are forbidden to "initiate a legal action in the Courts of the District of Columbia or in the Federal courts . . . ." By focusing solely on the word "initiate"and stressing that the matter of C.J.K.'s license was initiated at the ABC Board, not in courtpetitioners overlook the complete prohibition. Section 1-171i(g) forbids an ANC to "initiate a legal action. . . ." [Emphasis added.] A petition for judicial review of an agency decision is a wholly separate "legal action"; in contrast with an appeal from a trial court decision, it is not inherently a part ofnot a continuation ofthe administrative process initiated at the agency level. See Federal Radio Comm'n v. Nelson Bros. Co., 289 U.S. 266, 274-78, 53 S. Ct. 627, 77 L. Ed. 1166 (1932) (Hughes, C. J.); Red River Broadcasting Co. v. F. C. C., 69 App.D.C. 1, 3, 98 F.2d 282, 284 n. 2 (1938); Indiana Alcoholic Beverage Comm'n v. B & T Distributors, Inc., 141 Ind.App. 343, 228 N.E.2d 35, 36-37 (1967); Southern Ry. Co. v. Public Service Comm'n, 195 S.C. 247, 10 S.E.2d 769, 772 (1940). It "is similar in nature to an equitable proceeding to restrain the enforcement of an invalid administrative order." Red River Broadcasting Co. v. F. C. C., supra, 69 App.D.C. at 3, 98 F.2d at 284 n. 2. Thus, we find unpersuasive the petitioners' argument that the ANCs have not "initiated" the legal action before our court.
Furthermore, petitioners overlook the balance of the prohibitionthat an ANC shall not "initiate a legal action in the Courts. . . ." We conclude that this language conveys an unqualified intent to preclude ANCs from coming to courts as the initiators of judicial action, without regard to whether, as petitioners contend, the "legal action" itself was actually "initiated" at the agency level.[6] There is no basis in the words of the statute or in the legislative history[7] for concluding that the District Council intended to permit ANCs to seek judicial review of governmental agency action whileas petitioners concedeprohibiting ANC actions in the trial court against both public and private bodies. It is likely that the ANCs' principal litigative interest, if allowed by statute, would be review of agency actions, given the variety of governmental impacts which the ANCs are chartered to scrutinizeas this very petition exemplifies. We believe that the District Council would not have enacted the blanket prohibition in § 1-171i(g) had it intended to exempt such a majorif not the major source of potential ANC litigation.
Our conclusion is buttressed, finally, by the last sentence of § 1-171i(g), which suggests that ANCs should petition the District Council if "legal redress is required." In summary, the role of the ANCs is "advisory," as their very name suggests; they do not have an enforcement responsibilityor authority.
Our conclusion, however, does not mean that the ANCs' right to advise cannot be protected. To the contrary, we hold that *1377 ANC area residents (including ANC Commissioners as individual citizens) have standing to initiate legal action to assert the rights of the ANC itself.[8] We recognize this legal standing of ANC area residents[9] because they satisfy the threshold requirements: injury in fact and assertion of an injury arguably within the "zone of interests" sought to be protected or regulated by the statute in question. Data Processing Service v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S. Ct. 832, 25 L. Ed. 2d 192 (1970).[10]
ANCs exist, and are granted statutory rights, powers, and duties, for the benefit of the neighborhood residents they represent. If an ANC's statutory rights are violated and, as a consequence, the performance of its advisory duties is hindered, the actual injury is suffered by the residents themselves; they are the ones harmed by the ANC's inadequate presentation of neighborhood views. Further, the very statutory scheme of the ANC Act is designed to assure effective presentation of neighborhood views through the ANC instrumentality. Thus, any injury to the rights of residents to advise their government is clearly within the zone of interests which the ANC Act seeks to protect. Accordingly, the criteria for standing to seek judicial review of alleged violations of ANC rights are met by area residents. They are "persons aggrieved" by agency action that violates ANC rights; they have suffered "injury in fact" (see IV, infra) within the "zone of interests" sought to be protected by the ANC Act and other statutes involved in this case. See III and IV, infra.
In summary, ANCs 3-C and 3-F, as well as the Commissioners of each in their official rolls, have no capacity to assert the claims in this petition for review and must be dismissed as parties. Nonetheless, the Commissioners and the other petitioner-residents have standing to assert such claims as individuals. Therefore, unless the petition is moot, the court must address all arguments raised, including those involving the rights of the ANCs themselves.
B. Mootness
The second preliminary hurdle concerns the alleged mootness of the petition for review of the ABC Board's decision granting a 1976-1977 license. That license expired on January 31, 1977; a 1977-1978 license is now in effect.
In anticipation of the statutory expiration date of the initial license, C.J.K. reapplied in December, 1976, for the year commencing February 1, 1977. The Board scheduled a hearing for January 25, 1977. On that day petitioners filed a protest letter with the Board; on that day, too, the Board reissued the license. Respondents claim that the expiration of the old license and issuance of a new license upon C.J.K.'s reapplication mooted the only controversy (i. e., the challenge to the expired license) because petitioners either did not contest, or did not contest in timely fashion, the reapplication. Petitioners deny the insufficiency of their protest. Moreover, they maintain that the petition is not moot in any event because a favorable court decision can affect the validity of the reissued license. We agree with petitioners.
The doctrine of mootness has emerged to assure that the courts limit their decisions to the resolution of live cases and controversies *1378 between specific parties.[11] A court should not render a decision if it "cannot affect the matter in issue in the case before it." Mills v. Green, 159 U.S. 651, 653, 16 S. Ct. 132, 133, 40 L. Ed. 293 (1895); Alpert v. Wolf, D.C.Mun.App., 73 A.2d 525, 528 (1950). The ABC Board and C.J.K. contend that the omission of a timely protest and demand for a hearing on the reissuance of C.J.K.'s license resulted in disappearance of the subject matter, dissolution of the controversy, and consequent negation of this court's power to affect the rights of the parties. Respondents are wrong for several reasons.
We note, first, that prior to January 25, 1977, counsel for petitioners reached an understanding with counsel for C.J.K. confirming that petitioners continued to protest C.J.K.'s liquor license but that no purpose would be served by putting everyone concerned through another hearing. Petitioners also informed the Board of their continuing objections by letter of January 25, 1977.[12] Because, as a practical matter, a second hearing only four months after the Board's initial decision in all likelihood would have been futile, petitioners' election to pursue their remedy in this court to final resolution (after reaching an understanding with C.J.K. and apprising the Board of their position) was reasonable. Their actions were adequate to preserve their right to contest the hearing upon initial issuance of the license to C.J.K.
Second, the decision of this court will have an impact on the rights of the parties. We note from the Board's own regulations that if the Board had initially denied C.J. K.'s application, it could not have entertained a second application for a one-year period. 3 DCRR § 2.4(a). Therefore, if the initial license ought not to have been granted, the current, renewal license could not have been issued. In other words, if petitioners prevail in this court and at a new, properly constituted Board hearing, the result will be not merely a refusal to grant the initial license but also, by virtue of 3 DCRR § 2.4(a), a revocation of the second license.
We must recognize, finally, in view of the October 6, 1976, petition for review by this court, the understanding between petitioners' and C.J.K.'s counsel, the petitioners' January 25, 1977, letter to the Board, and, in all probability, the pro forma nature[13] of the renewal of the license on January 25, 1977, that C.J.K.'s 1977-78 license is the very subject matter of the present case. If we were not to take this position, there would be a premium on seeking initial issuance of a license very near the end of the statutory license year (January 31), in the hope that a February 1 renewal could be accomplished to moot any potential litigation. Therefore, regardless of regulation 3 DCRR § 2.4(a), circumscribing the Board's power to consider reapplications, we are not powerless to affect the current license. It is, in actuality, the end product of the allegedly defective hearing.
Thus, the mere "renewal" of the license while opposition to its original issuance continued by letter to the Board and by petition to this court did not moot the controversy. We must, therefore, proceed to resolve the issues raised by the petition.
*1379 III. Notice
Petitioners complain of three separate deficiencies in the Board's notice procedures for the rescheduled hearing, namely (1) the failure to dispatch "special notice" to the two ANCs concerned about the pending application, (2) the failure to notify known remonstrants of the rescheduling of the hearing on the application, and (3) the failure to post notice of the rescheduled hearing on C.J.K.'s premises.
A. Special Notice to Advisory Neighborhood Commissions
At the ABC Board hearing, petitioners insisted that the Board had erred by not directing special notice[14] to ANCs 3-C and 3-F, as required by two statutes:
Section 738 of the District of Columbia Self-Government and Governmental Reorganization Act, Pub.L.No.93-198, 87 Stat. 774 (1973) (the "Home Rule Act"), and
Section 13 (codified as § 1-171i) of the ANC Act, supra.
In response, the Board sought the opinion of the District's Corporation Counsel. On August 23, 1976, prior to the Board's decision, the Corporation Counsel issued an opinion rejecting the necessity of special notice in these circumstances. The Board relied on this statutory interpretation in its findings, conclusions, and order, and urges us to affirm the Corporation Counsel's view.
We are presented with a question of first impression about the proper interpretation of the Congressional and District Council legislation governing ANCs. Our analysis begins with the Home Rule Act, specifically § 738(c)(1) and § 738(d), which provide:
(c) Each advisory neighborhood commission
(1) may advise the District government on matters of public policy including decisions regarding planning, streets, recreation, social services programs, health, safety, and sanitation in that neighborhood commission area;
. . . . .
(d) In the manner provided by act of the Council, in addition to any other notice required by law, timely notice shall be given to each advisory neighborhood commission of requested or proposed zoning changes, variances, public improvements, licenses or permits of significance to neighborhood planning and development within its neighborhood commission area for its review, comment, and recommendation. [Emphasis added.]
The "manner provided by act of the Council" for implementing this "timely notice" provision in § 738(d) is elaborated in § 13 of the ANC Act, codified in D.C.Code 1977 Supp., § 1-171i(a)-(c):
(a) Each Advisory Neighborhood Commission (hereinafter in sections 1-171i to 1-171l the "Commission") may advise the Council of the District of Columbia, the Mayor and each Executive Agency and all independent agencies, boards and commissions of the government of the District of Columbia with respect to all proposed matters of District government policy including decisions regarding planning, streets, recreation, social services programs, education, health, safety and sanitation which affect the Commission area. For the purposes of this act, proposed actions of District government policy shall be the same as those for which prior notice of proposed rule-making is required pursuant to section 1-1505(a) [the DCAPA] or as pertains to the Council of the District of Columbia.
(b) Thirty days written notice of such District government action or proposed actions shall be given by mail to each Commission affected by said actions, except where shorter notice on good cause made and published with the notice may be provided or in the case of an emergency and such notice shall be published in the District of Columbia Register. . .
*1380 (c) Proposed District government actions covered by this act shall include, but shall not be limited to, actions of the Council of the District of Columbia, the Executive Branch or independent agency. In addition to those notices required in subsection (a) above, each agency, board and commission shall, before the award of any grant funds to a citizen organization or group, or before the formulation of any final policy decision or guideline with respect to grant applications, comprehensive plans, requested or proposed zoning changes, variances, public improvements, licenses, or permits affecting said Commission area, the District Budget and city goals, and priorities, proposed changes in District government service delivery and the opening of any proposed facility systems, provide to each affected Commission notice of the proposed action as required by subsection (b). Each District of Columbia agency shall maintain a record of such notices sent to each Commission. [Emphasis added.]
The Corporation Counsel's opinion essentially states that ANCs are only entitled to "thirty days written notice" of legislative (i. e., rule-making and District Council) proposals; special notice is not required in adjudicative situations, such as issuance of a liquor license. More specifically, § 1-171i(a) calls for ANC advice "with respect to all proposed matters of District Government policy," and then defines all "proposed actions of District government policy . . as those for which prior notice of proposed rule-making is required . . . or as pertains to the Council of the District of Columbia." [Emphasis added.] Similarly, § 1-171i(c) calls for thirty-days' notice to "each affected" ANC, pursuant to § 1-171i(b), "before the formulation of any final policy decision or guideline with respect to. . . licenses . . . affecting said Commission area." It follows, say the respondents, in reliance on the Corporation Counsel, that ANCs are only entitled to special, thirty-day notice of rule-making or other legislative activity concerning the issuance of liquor licenses generally. Both § 1-171i(a) and § 1-171i(c), they say, refer to policy formulation, not to implementation through the adjudicative process.
Our primary task must be to effectuate the intent of Congress and the District Council, as expressed in the Home Rule and ANC Acts, respectively. See Bailey v. United States, D.C.App., 223 A.2d 190, 191 (1966). Mindful of the fact that the ANC Act was adopted for the express purpose of implementing the Home Rule Act (as it pertains to ANCs), we see revealing parallels that clarify the legislative intentand do so contrary to the Corporation Counsel's interpretation.
Section 1-171i(a) of the ANC Act, by virtue of its reference to the DCAPA and to the District Council, is confined to general policy decisionsto rule-making or District Council action. It virtually tracks the language of § 738(c)(1) of the Home Rule Act, a subsection likewise concerned solely with policy determinations. On the other hand, § 1-171i(c) of the ANC Act, the subsection which petitioners find applicable to C.J.K.'s liquor license application, enumerates "additional" matters requiring special notice. In so doing it is notably similar to § 738(d) of the Home Rule Act. In fact, the language in the two statutes requiring notice to ANCs of "requested or proposed zoning changes, variances, public improvements, licenses, or permits" is identical. We find the similaritiesincluding the quoted identities to be more than coincidental. We see in such likeness the intent that § 1-171i(c) specifically implement § 738(d)'s mandate that "timely notice shall be given. . . of requested or proposed . . licenses . . . of significance to neighborhood planning and development within its neighborhood commission area. . ." [Emphasis added.]
By focusing on the parallels between the two Acts, and thus reading § 738(d) and § 1-171i(c) together, we conclude that § 1-171i(c) requires timely written notice to ANCs in adjudicative situations, such as the issuance of particular liquor licenses; we do not believe that the words "policy decision or guideline," as used in § 1-171i(c), indicate *1381 an intent to limit such special notice to legislative-type actions. We have three reasons: First, most of the matters enumerated in § 1-171i(c) are specific activities directed at an ANC area. "Proposed zoning changes, variances, public improvements, licenses, or permits," for example, are usually discrete, local issues rather than the subjects of general policy-making. Second, if § 1-171i(c) were limited to legislative activities, it would be wholly redundant when compared with the earlier "legislative" provision, § 1-171i(a). Statutory interpretations which result in redundancy are disfavored. Wirtz v. Cascade Employer's Ass'n, Inc., of Pacific Northwest, 219 F. Supp. 84 (D.D.C.1963). Finally, § 738(d) of the Home Rule Act itself manifests an intention that timely notice be given of all "requested or proposed zoning changes, variances, public improvements, licenses or permits of significance" to a neighborhood clearly discrete events. Absent adoption of the ANC Act, probably no one seriously would contend that only legislative activity is "of significance" to a neighborhood, and that § 738(d) accordingly limits timely notice to requested or proposed legislative actions. If, therefore, we were to limit the provisions of § 1-171i(c) to legislative concerns, we would eviscerate the express language of the Home Rule Act itself.[15]
Still, the above analysis informs us only that § 738(d) and § 1-171i(c) embrace more than proposed policy decisions. It does not tell us how much more. An ANC is not necessarily entitled to special, thirty-day notice of every neighborhood matter listed in § 1-171i(c) of the ANC Act, for § 738(d) of the Home Rule Act limits such notice to matters "of significance to neighborhood planning and development." [Emphasis added.]
We do not intend, on the basis of this one case, to propose an inflexible standard for determining "significance" in every situation. At a minimum, however, we have concluded, and accordingly hold, that every proposed governmental decision affecting neighborhood planning and development, as defined in § 1-171i(c), for which a prior hearing is required by law is sufficiently significant to require written notice, pursuant to § 1-171i(b), to the affected ANC or ANCs.[16] The legislative decision to require a public hearing is an implicit determination of considerable significance of a proposed action. Because some form of public notice will already be required in such situations, the additional demand of special notice to affected ANCs will not be unduly burdensome. (The burden will be even less in connection with an ABC Board hearing, for the Board is required in any event to notify all known remonstrants personally when a hearing is scheduled. 3 DCRR § 20.1; see III.B., infra.)
We do not imply that all administrative agency matters for which hearings are not required are automatically excluded from the realm of significance. While it is difficult to conceive of many matters, not requiring a hearing, which would be sufficiently significant to neighborhood planning and development to warrant special notice to an ANC, we do not wish categorically to exclude all such cases.
The implications of our analysis for this case are as follows: The ABC Board's statutory and regulatory frameworks provide for noticed hearings on liquor license applications and reapplications.[17] Therefore, such applications are of significance to neighborhood planning and development and special notice, i. e., thirty-days written *1382 notice pursuant to D.C.Code 1977 Supp., § 1-171i(b), must be sent to all affected ANCs. We hold that the Board's failure in this case to give such notice to ANCs 3-C and 3-F was error.
The ABC Board and C.J.K. have maintained, nevertheless, that even if special notice had been required, the technical failure to comply with the statute did not prejudice ANCs 3-C and 3-F because they had received actual notice. We agree that the error here was cured by actual notice; it is therefore not reversible.
The requirements of procedural due process are met if upon review the court is satisfied that a complainant was given an adequate opportunity to prepare and present its position . . . and that no prejudice resulted from the originally deficient notice.
Watergate Improvement Ass'n v. Public Service Commission, D.C.App., 326 A.2d 778 (1974). See Schiffmann v. District of Columbia A.B.C. Board, D.C.App., 302 A.2d 235 (1973). Petitioners concede in their brief that Gary and Judy Kopff themselves notified ANCs 3-C and 3-F of the hearing on C.J.K.'s application, that the ANCs met and adopted resolutions expressing their positions on the matter, and that representatives attended the hearing and were prepared to present the ANCs' views and recommendations. We therefore can perceive no prejudice from the technical defect. While petitioners assert prejudice, they do not specify its manner or impact. We are satisfied that actual notice remedied the error and rendered it non-reversible.
B. The Requirements of Notice to Known Remonstrants and of Posting Notice on the Premises
The basic statutory scheme underlying the creation and operation of the Alcoholic Beverage Control Board specifies that
[b]efore granting a [Class C retailers] license . . . the Board shall give notice by advertisement published once a week and for at least two weeks in some newspaper of general circulation in the District of Columbia. . . . There shall also be posted by the Board a notice, in a conspicuous place, on the outside of the premises. This notice shall state that remonstrants are entitled to be heard before the granting of such license and shall name the same time and place for such hearing as set out in the public advertisement.. . . [D.C.Code 1973, § 25-115(b); emphasis added.]
In addition, the Board's implementing regulations state that
[t]he Board shall . . . notify all persons required to be heard in any hearing or proceeding before it . . . [including] remonstrants, if known. The notice shall include information relating to the nature of said hearing or proceeding and the time and place when and where said hearing or proceeding will be conducted. [3 DCRR § 20.1; emphasis added.]
Petitioners complain that upon rescheduling the hearing on C.J.K.'s application, the ABC Board failed to comply with this statute and regulation.[18] The Board does not deny that it failed to post notice of the rescheduled hearing; nor does the Board deny that it neglected to notify the known remonstrants. Instead, the Board and C.J.K. argue that actual notice to all petitioners present at the rescheduled hearing cured the technical defect, that the notice mailed to Mrs. Kopff sufficed for all other known remonstrants, and that "no person allegedly without notice has appeared in protest." The Board's defenses to its admitted failures to comply with the statutory notice requirements are not sound.[19]
*1383 First, specific notice to Mrs. Kopff cannot fulfill the Board's duty to notify all known remonstrants. Even though the Kopffs collected and presented to the Board the signatures of neighbors who did object to the application, they did not assume the Board's statutory responsibility. We cannot endorse the Board's attempt to shift to private persons its responsibility for the notification of known remonstrants. Additionally, actual notice to individuals who did appear cannot remedy the lack of notice either to those who were known but not apprised of the rescheduling, or to those who might have seen an accurate "posting" on the premisesbut did not. Absent potential witnesses remain prejudiced. Accordingly, the Board violated both its duty to notify "known remonstrants," 3 DCRR § 20.1, and its duty to post notice on the premises. D.C.Code 1973, § 25-115(b). Neither deficiency could be cured by actual notice to those who appeared.
The Board's and C.J.K.'s reliance on this court's opinion in Schiffmann v. District of Columbia A.B.C. Board, supra, is misplaced. There, this court held that actual notice to the petitioners cured, as to them, any failure to give notice by publication. Petitioners here, however, do not assert a lack of notice to themselves. They assert the rights of those who were entitled to notice but did not receive it and, as a consequence, did not appear at the hearing. (Respondents do not challenge petitioners' standing to assert these rights.) The argument that "no person allegedly without notice has appeared in protest" is illogical. We cannot expect unnotified individuals to petition for review of an ABC Board decision of which they still may not be aware. We hold, therefore, that in failing to give the notices required by D.C.Code 1973, § 25-115(b) and 3 DCRR § 20.1, the Board did not afford all potentially concerned individuals an adequate opportunity to be heard. As a result, the Board's capacity for effective assessment of "neighborhood wishes" was impaired.[20] We shall not speculate about how many more would have attended the hearing if proper notice had been given, or about whether additional attendance would have contributed to the dialogue. That is irrelevant. Because a statutory right to due notice has been violated and cannot be cured until everyone receives notice, the error cannot be deemed harmless.[21]
IV. Attribution of "Great Weight" to the "Issues and Concerns" of Advisory Neighborhood Commissions
D.C.Code 1977 Supp., § 1-171i(d) provides, in pertinent part:
Each Commission so notified [i. e., in writing] . . . shall forward its written recommendations . . . to the appropriate agency . . . . The issues and concerns raised in the recommendations of the Commission shall be given great weight during the deliberations by the governmental agency and those issues shall be discussed in the written rationale for the governmental decision taken. [Emphasis added.]
This subsection mandates that the ABC Board give "great weight" to all "issues and concerns" raised by ANCs in all cases where written notice to ANCs is required. Our next task, therefore, is to determine the meaning of the statutory words "great weight."
Petitioners assert, first, that the recommendations of citizens' groups are normally given "careful consideration" in administrative proceedings. They maintain that the legislative choice of the term "great weight," rather than "careful consideration," in the ANC context must imply greater deference than that accorded ordinary citizens' groups. Second, petitioners *1384 stress the canon of statutory construction which declares that legal terminology ordinarily should be given its accepted legal meaning. They then cite cases holding that an expert agency's construction of its own enabling statute should be given "great weight," and that a court should adopt the agency's construction unless it is unreasonable. Petitioners urge us to conclude that ANC recommendations are entitled to similar deference at agency hearings. We are not persuaded.
First, the cases cited by petitioners do not establish a "careful consideration" standard for citizens' group concerns, nor do they define such terms.[22] Thus, these cases do not provide a reference point for defining the "great weight" standard. Second, ANC recommendations, whether in a legislative or administrative context, are not analogous to legal interpretations of enabling statutes by expert administrative agencies charged with regulatory or other governmental responsibilities. If the Board were to afford the degree of weight to ANC judgments urged by petitioners, it would tread perilously close to, if not cross into, the realm of improper delegation of its governmental authority to a private party. Truethe ANCs have governmental responsibilities in the sense that they are created by statute, elected by the general public, and funded by the taxpayers. But neither Congress nor the District Council has even hinted at granting ANCs responsibilities for governmental operations. They are advisory only. To construe their enabling statutes in a way that would grant the ANCs "expert" status, entitled to special deference as such, would be to sanction interference with the established pattern of governmental relationships. We find no such intention in either the Home Rule Act or the ANC Act.
We conclude that "great weight," as used in the ANC Act, does not build in some kind of quantum or presumption of deference to be accorded ANCs. It means, rather, that an agency must elaborate, with precision, its response to the ANC issues and concerns. It is a statutory method of forcing an agency to come to grips with the ANC viewto deal with it in detail, without slip-page. In doing so an agency must focus particular attention not only on the issues and concerns as pressed by an ANC, but also on the fact that the ANC, as a representative body, is the group making the recommendation. That is, the agency must articulate why the particular ANC itself, given its vantage point, doesor does not offer persuasive advice under the circumstances. In summary, government agencies are charged to pay specific attention to the source, as well as the content, of ANC recommendations, giving them whatever deference they merit in the context of the entire proceedings, including the evidence and views presented by others.
Although "great weight" in this context is not a quantum requirement, we do not accept respondents' view that the ANC itself need not be mentioned in an ABC Board decision, as long as the "issues and concerns" of the ANC receive the requisite consideration. To the contrary, we believe that "great weight" implies explicit reference to each ANC issue and concern as such, as well as specific findings and conclusions with respect to each. Although the statutory language literally does not require such acknowledgment of the ANC source, we have concludedand holdthat such acknowledgment is implicit in the very purpose of § 1-171i(d) of the ANC Act. It is necessary not only to assure compliance with the "great weight" mandate but also to facilitate judicial review. Without such attribution, there is a danger that an agency, *1385 while dealing with ANC issues and concerns, would not analyze the matter in a way that evidences serious attention to the ANC source itself.
In this case, the ABC Board failed to give "great weight" to the issues and concerns of ANCs 3-C and 3-F, as we have construed that standard. It is unclear whether the Board even admitted into evidence the resolution of ANC 3-C. See V, infra. In any event, it is clear that the Board was not cognizant of its duty to give ANC issues great weight.[23] Under the circumstances, we must remand the case to the Board for explicit consideration of the ANC positions upon rehearing.
V. Evidentiary Rulings
In ruling upon the admissibility of evidence at the hearing, the Board was subject to two specific constraints. First, the DCAPA permits administrative agencies to receive "any oral or documentary evidence" but mandates the exclusion of "irrelevant, immaterial and unduly repetitious evidence." D.C.Code 1977 Supp., § 1-1509(b). Second, the Board's own regulation, 3 DCRR § 20.5, limits the evidence at hearings to
. . . material evidence relative to the issues arising in the proceeding as may be necessary to protect the public interest or to prevent injustice. Evidence will be excluded in the discretion of the Board if it is repetitious or redundant. The Board shall determine the materiality, relevance and probative value of any evidence submitted.
Petitioners assert that three of the Board's evidentiary rulings, namely the exclusion of ANC 3-C's resolution opposing the license, Mr. Kopff's neighborhood survey, and Mr. Smith's "Metro" data, violated these guidelines. Petitioners maintain that the Board ignored the principle of liberal, flexible admission of evidence in administrative proceedings.
The case law and other legal authorities recognize that the strict rules of evidence applicable to the trial of cases are of limited use in the administrative arena. Because there is no jury to shield, and individual agency members are presumed capable of properly assessing the reliability and weight of evidence, greater flexibility and discretion as to admission are permitted. 2 Davis, Administrative Law Treatise § 14.01 et seq. (1958). Failure to apply these generous principles of admissibility can be a basis for reversal of an agency decision, although prejudice must be shown. Wallace v. District Unemployment Comp. Board, D.C.App., 294 A.2d 177 (1972); Carter-Wallace, Inc. v. Gardner, 417 F.2d 1086 (4th Cir. 1969). Our present inquiry, therefore, is whether the Board erred in excluding the specified items and, if so, whether prejudice resulted.
A. The ANC Resolution
ANC 3-C became aware of the pending application when notified by Mr. Kopff. Subsequently, at a regular meeting, the ANC discussed the application and adopted a resolution to oppose it. Commissioner Sam Smith submitted this resolution to the ABC Board at the hearing.
It is difficult to determine whether the resolution of ANC 3-C was or was not admitted over hearsay objections; the Board took admissibility under advisement. Considering our conclusion that ANC issues and concerns are entitled to great weight, as well as the ANC's statutory mandate to forward its recommendations to the Board, exclusion would have been error. In this instance, however, even if we assume that the resolution was erroneously excluded on hearsay grounds, we need not evaluate prejudice. Because we are remanding for other reasons, we merely suggest that the Board not exclude such evidence at the new hearing.
*1386 B. Mr. Kopff's Survey and Mr. Smith's Metro Data
Mr. Kopff proffered a survey of residents' views about the proposed license. Mr. Smith proposed to summarize information regarding the potential congestive impact of a Metro station under construction nearby. Although the Board could have admitted both of these items despite their hearsay nature, it had discretion under the applicable guidelines to reject the evidence as unreliable; and, even if this evidence should have been admitted, the Board could have discounted both items as having no probative value. We can find neither an abuse of discretion nor prejudice to petitioners from the rulings.
VI. Adequacy of the ABC Board's Findings and Conclusions
We could end the inquiry without evaluating the Board's findings and conclusions, for they were based upon testimony derived from incomplete notice of the June 9, 1976, hearing. There are, nevertheless, good reasons to address the Board's determinations. First, the parties should not resubmit the matter to the Board with apprehensions about how we view the proceedings to date. Second, the question whether C.J.K.'s license should remain in effect pending a new determination cannot be resolved properly without evaluating what took place at the last hearing.[24]
Petitioners have advanced two challenges to the sufficiency of the Board's findings and conclusions: (A) that the findings of fact and conclusions of law are fatally incomplete and lacking in detail, and (B) that such findings and conclusions are not supported by substantial evidence.
A. The Completeness and Detail of the Board's Findings and Conclusions
The DCAPA specifies that all contested case decisions and orders must be "accompanied by findings of fact and conclusions of law," and that the "findings of fact shall consist of a concise statement of the conclusions upon each contested issue of fact." D.C.Code 1977 Supp., § 1-1509(e).[25] In Palmer v. Board of Zoning Adjustments, D.C.App., 287 A.2d 535, 538 (1972), we have interpreted this provision to require
findings of fact of a basic or underlying nature necessary to a determination of ultimate facts, usually stated in terms of the statutory criteria. Without such findings there is no guarantee that "cases [will] be decided according to the evidence and the law, rather than arbitrarily or from extra-legal considerations" [footnotes omitted; emphasis added].
We stated that such findings were essential for "intelligent judicial review." Id.
*1387 Petitioners contend that the ABC Board's findings do not address each contested issue and, therefore, that they thwart effective appellate review. They rely specifically upon 3 DCRR § 21.7(a)(2), supra note 25, and the omission of particular attention to potential Metro station impact. We find the Board's written findings and conclusions adequate (based on the evidence presented); we reject these assignments of error.
The Board made specific findings on all the issues raised by the petitioners: (1) saturation of liquor licenses, (2) parking and traffic, (3) refuse storage, (4) the character of the neighborhood, and (5) neighborhood wishes and desires. The Board also made all the findings specifically required by the Alcoholic Beverage Control statutes and regulations. D.C.Code 1973, § 25-115; 3 DCRR § 21.7. The Board accordingly demonstrated the necessary concern for all contested issues and paid particular attention to the statutory elements of neighborhood surroundings (including Metro impact upon parking) and residents' wishes. See 3 DCRR § 21.7(a)(2). The findings upon each issue, moreover, are sufficiently detailed for the effective performance of this court's review duties; i. e., assessment of the rationality of and evidentiary support for the Board's conclusions.
B. Substantiality of the Evidence
"Findings of fact and conclusions of law shall be supported by and in accordance with the reliable, probative, and substantial evidence." D.C.Code 1977 Supp., § 1-1509(e). [Emphasis added.] Therefore, even though we have determined that the Board's findings are sufficiently complete and detailed, we must reverse if we find that the Board failed to support its findings and conclusions with substantial evidence. D.C.Code 1977 Supp., § 1-1510(3)(E).
Substantial evidence has been defined as "more than a mere scintilla"; i. e., "such relevant evidence as reasonable minds might accept as adequate to support the conclusion." Vestry of Grace Parish v. District of Columbia A.B.C. Board, D.C.App., 366 A.2d 1110, 1112 (1976). While the existence of this quantum of evidence is necessary, it is not sufficient, for there also
. . . must be a demonstration in the findings of a "rational connection between facts found and the choice made." [Brewington v. District of Columbia Board of Appeals and Review, D.C.App., 299 A.2d 145, 147 (1973); citation omitted; latter emphasis added.][26]
After a thorough review of the hearing record and the Board's determinations, we have concluded that for each of the five issues posed by petitioners, the Board could point to "more than a mere scintilla" of rationally connected evidentiary support. We must therefore reject petitioners' contention here.[27]
VII. Conclusion
We hold that the Board committed reversible error by its (1) failure to notify *1388 known remonstrants of the rescheduling of the hearing on C.J.K.'s application from May 20, 1976, to June 9, 1976, (2) failure to post notice of the rescheduled hearing on the C.J.K. premises, and (3) failure to give great weight to the issues and concerns of the affected ANCs. We further hold that it was error (although not a basis for reversal here) not to deliver written notice to ANCs 3-C and 3-F at least thirty days before the initial and rescheduled hearing dates. We therefore remand the proceeding to the ABC Board for prompt conduct of a new hearing upon the appropriateness of issuing a Class C retailer's license to C.J.K.
One final comment. Because the Board's findings and conclusions, based on the evidence before it (which included the issues and concerns of ANCs 3-C and 3-F), were sufficiently detailed and supported by substantial evidence, it would be inequitable to terminate C.J.K.'s 1977-78 license prior to a new determination by the ABC Board itself in conformity with this opinion. Thus, C.J. K.'s Class C retailer's license shall remain in effect until further order of the ABC Board, timely made.
Remanded for further proceedings.
NOTES
[1] D.C.Code 1973, § 25-111(g), provides for issuance of a "Retailer's License, class C . . only for a bona fide restaurant, hotel, or club. . . . [which license] shall authorize the holder thereof to keep for sale and to sell spirits, wine, and beer at the place therein described for consumption only in said place. . ."
[2] Petitioners include: Gary Kopff and Judy Kopff; Advisory Neighborhood Commissions 3-C and 3-F; ANC 3-C Commissioners Neal Krucoff, Kay McGrath, Lindsley Williams, Katherine Coram, Charles Vanway, Jr., Sam Smith, Thomas Corcoran, Jr., and Ruth Hougen; ANC 3-F Commissioners Stephen P. Belcher, Jacob D. Kolper, Mark Novitch, Barry Zamoff, and Mitchell H. Sindler. The Commissioners petition both in their official capacities and as individuals.
[3] The notice statute, D.C.Code 1973, § 25-115(b), uses the term "remonstrants" to describe those who oppose issuance of a liquor license.
[4] By force of D.C.Code 1973, § 25-114, this license expired 17 days later on January 31, 1977. Meanwhile, on December 20, 1976, C.J.K. had applied for "renewal" for the new license year, February 1, 1977, to January 31, 1978. On January 25, 1977, that application was granted after the posting of notice as required by law. D.C.Code 1973, § 25-115(b). Notice by publication is not required for renewals. Id. The renewed license is currently in effect.
[5] Respondents observe that this reference to a "Commission . . . bringing suit as a citizen" is a typographical error which should read "Commissioner." We agree. It is the only logical explanation of the phrase in context. Petitioners do not contest this explanation.
[6] We do not consider the application of § 1-171i(g) to an ANC effort to intervene or file an amicus brief in a court proceeding initiated and substantially financed by others.
[7] We find no support for petitioners' position in the language of a bill proposed prior to adoption of the ANC Act. Bill 1-193, Section 12(f), 22 D.C.R. 1813, 1816-17, October 10, 1976, provided:
Each Advisory Neighborhood Commission shall have the power to lobby and to present its view to any federal or District agency but shall not have power to bring suit against any federal or District agencies. [Emphasis added.]
Because the reasons for the change are not apparent, and reasonable arguments based upon such modification might be made in support of both sides of the present controversy, we place no reliance on this legislative event.
[8] See American University Park Citizens Association v. Burka, D.C.Super.Ct., Civ. No. 11437-76, June 23, 1977, in which Judge Ugast reached the same conclusion.
[9] An "area resident" is an individual who resides within the boundaries of a particular "Advisory Neighborhood Commission area" (D.C. Code 1977 Supp., § 1-171a) for which an Advisory Neighborhood Commission has been established. D.C.Code 1977 Supp., § 1-171c.
[10] The extension of the right to seek judicial review of agency actions to "persons aggrieved" (5 U.S.C. § 702; D.C.Code 1977 Supp., § 1-1510) does not abrogate these ordinary judicial standing requirements. Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972); Data Processing Service v. Camp, supra.
[11] Although the District of Columbia Court of Appeals has been established by Congress pursuant to Article I of the Constitution rather than Article III, D.C.Code 1973, § 11-101(2)(A); Palmore v. United States, 411 U.S. 389, 406-07, 93 S. Ct. 1670, 36 L. Ed. 2d 342 (1973), our jurisdiction is limited by the same "case or controversy" requirement, see D.C.Code 1973, § 11-705(b), as that imposed on the Article III courts since Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 5 L. Ed. 257 (1821).
[12] Possible untimeliness of the protest under the strict terms of the Board's regulations ought not to bar review here. See 3 DCRR § 21.6(b)(3) (commands that "written objections filed pursuant to a notice concerning . . reissuance . . . shall . . . be filed at least five (5) calendar days prior to the date of hearing as stated in said notice"). Petitioners did strike an agreement with counsel for C.J.K. to the effect that another hearing would serve no purpose. In addition, the Board did receive the protest letter on the date set for hearing. Thus, petitioners made a good faith effort to preserve their objections.
[13] Recall that only posting, not publication, of notice is required when a renewal is sought. See note 4, supra.
[14] "Special notice" refers to the "thirty-days' written notice . . . by mail" mandated by D.C.Code 1977 Supp., § 1-171i(b).
[15] Petitioners argue that if § 1-171i cannot be read consistently with § 738, the former must yield to the latter by virtue of the Supremacy Clause (U.S.Const. art. VI, § 2). Since we do not find these sections irreconcilable, we do not express an opinion on this question of the constitutional relationship between the Home Rule Act and its implementing legislation promulgated by the District of Columbia Council.
[16] Respondents have not contested petitioners' claim that two ANCs, 3-C and 3-F, were entitled to special notice, and the record does not make clear why both are affected here. We assume that their boundary line runs very close to C.J.K.'s premises.
[17] D.C.Code 1973, § 25-115(b); 3 DCRR § 20.1 et seq.
[18] Petitioners also argue that the Board violated the DCAPA. That act, however, is not a solid basis for reliance, for it merely requires "reasonable notice" to "parties." D.C.Code 1977 Supp., § 1-1509(a).
[19] Although respondents do not contend that the statutes and regulations are inapplicable to "reschedulings," it is important to emphasize that reschedulings of administrative hearings are subject to the same notice requirements as initial schedulings. The literal statutory terms mandate inclusion of the "time" of the hearing in posted, published, and mailed notices. Certainly, this time must be accurately stated and kept current, lest the very purpose of notificationprovision of an opportunity to be heardwould be defeated.
[20] See D.C.Code 1973, § 25-115(a)6.
[21] The reference in the Board's findings of fact to the paucity of witnesses who appeared to oppose the license implies a possibility that a greater number of opponents could have influenced the Board's decision. Rec. at 274, ¶ 40.
[22] Citizens Ass'n of Georgetown, Inc. v. Alcoholic Beverage Control Board, D.C.App., 268 A.2d 801 (1970); Sophia's Inc. v. Alcoholic Beverage Control Board, D.C.App., 268 A.2d 799 (1970). Both cases simply deal with the general requirement that the Board find premises "appropriate" in light of neighborhood wishes and character. In Georgetown the Board had noted that it had given "careful consideration" to the protests of both residents and the citizens' association. The court, however, did not adopt that language as a standard of review for the Board.
[23] When witness Arthur Meigs inquired whether the Board intended to give the ANCs' recommendations great weight, Chairman Hill replied, "The Board will consider all evidence having relevance to this case."
[24] Our court, as appropriate to the circumstances, has authority to "affirm, modify, or set aside the order or decision complained of, in whole or in part, and, if need be, to remand the case for further proceedings, as justice may require . . . [and] may order a stay upon appropriate terms." D.C.Code 1977 Supp., § 1-1510.
[25] The Board's own regulatory scheme, 3 DCRR § 21.7, adopted pursuant to D.C. Code 1973, § 25-107, imposes additional requirements:
(a) Within a reasonable time after the close of a hearing of an original application, or the transfer of an existing license to a new location, the Board shall make specific Findings of Fact as required under the provisions of Sections 14(a)6 and 14(c) of the ABC Act [D.C.Code 1973, § 25-115(a)(6) and § 25-115(c)] and Section 21.2 of this title. Such findings shall include but not be limited to the following:
(1) the boundaries of previously defined neighborhood;
(2) a finding under Section 14(a)6 of the ABC Act as to the appropriateness of the place for which the license is sought, considering the character of the premises, its surroundings, and the wishes of the persons residing or owning property in the neighborhood of the premises for which the license is desired;
(3) a finding as to the applicability of Section 14(c) of the ABC Act [pertaining to written objections of real property owners within 600 feet of the property];
(4) a finding as to the applicability of Section 21.2 of this title [precluding issuance of a license within 400 feet of schools, churches, and public recreation areas]; and
(5) that the place for which the license is sought to be issued is or is not appropriate.
(b) The Board shall make Findings of Fact and Conclusions necessary for a proper determination of said hearing.
[26] It is thus our duty to assess both substantiality and the logical connection between the evidence and conclusions, but not to substitute our judgment for that of the administrative agency. Schiffmann v. District of Columbia A.B.C. Board, supra. See D.C.Code 1977 Supp., § 1-1510(3)(E).
[27] Petitioners allege one additional error in the Board's failure to define the relevant neighborhood, for the purpose of C.J.K.'s application, as coextensive with ANC boundaries. They cite no authority for this proposition. The only pertinent regulation of the Board's power and duty to specify the affected neighborhood is in 3 DCRR § 21.1, which states:
Upon the filing of an application for the issuance of an original or the transfer to a different location of an existing license, except a retailer's license Class E or F, the Board shall promptly delineate or define the boundary lines of the `neighborhood' under Section 14(a)6 of the ABC Act and shall in all advertisements and public notices published or posted concerning said applications set forth the boundary lines of such `neighborhood' to the nearest public roadway, natural boundary or thoroughfare.
We find no mandate there, or in the ANC Act or elsewhere, for conforming the neighborhood to ANC boundaries, and we decline to engage in the judicial legislation necessary to create and impose such a requirement upon the Board. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2347794/ | 161 F. Supp. 125 (1958)
Beryl Whiteman STILES
v.
NATIONAL AIRLINES, Inc.
N. H. CONDER, duly qualified Administrator of the Estate of W. B. Schnorbus, and duly qualified legal guardian for and on behalf of Vicky Ann Schnorbus, and next friend, and as a personal representative and next friend on behalf of Mrs. Joe Schnorbus and Mrs. Lula Conder
v.
NATIONAL AIRLINES, Inc.
and
N. H. CONDER, duly qualified Administrator of the Estate of Mrs. Clara Conder Schnorbus, wife of Walter B. Schnorbus, and duly qualified legal guardian for and on behalf of Vicky Ann Schnorbus and next friend, and as personal representative and next friend on behalf of Mrs. Lula Conder
v.
NATIONAL AIRLINES, Inc.
Nos. 2509, 2688, 2697.
United States District Court E. D. Louisiana, New Orleans Division.
March 27, 1958.
Deutsch, Kerrigan & Stiles, Rene H. Himel, Jr., Ralph L. Kaskell, Jr., William S. Stone, New Orleans, La., for libellant Stiles.
Liddell, Austin, Dawson & Huggins, Dwight Austin, Houston, Tex., and Byrnes & Wallace, New Orleans, La., for libellant Conder.
*126 Porteous & Johnson, F. Carter Johnson, Jr., New Orleans, La., and Dixon, DeJarnette, Bradford & Williams, H. Reid DeJarnette, Miami, Fla., for respondent.
CHRISTENBERRY, Chief Judge.
The foregoing matters having been consolidated for trial, and having been tried to the Court without a jury, the Court having heard evidence and the arguments of proctors, and having taken time to consider the matters, hereby makes the following findings of fact and conclusions of law:
Findings Of Fact
1Beryl Whiteman Stiles, Libelant in No. 2509, is the surviving spouse of Harry F. Stiles, Jr., intestate deceased, who left no surviving parents, children or other dependent relatives.
2N. H. Conder, Libelant in No. 2688 and No. 2697, is the duly qualified Administrator of the Estates of Walter B. Schnorbus and Mrs. Clara C. Schnorbus, wife of Walter B. Schnorbus, respectively, and legal guardian for and on behalf of Vicky Ann Schnorbus, and next friend, and as a personal representative and next friend on behalf of Mrs. Joe Schnorbus and Mrs. Lula Conder.
3At all material times, respondent, a Florida corporation, was a common carrier of passengers for hire by air between the cities, among others, of Miami, Tampa and New Orleans.
3aOn the afternoon of February 14, 1953, libelants' intestates were traveling on one of respondent's airplanes (Flight 470), under a regular contract of passage, from Miami via Tampa across the Gulf of Mexico to New Orleans. Said airplane, while en route from Tampa to New Orleans, encountered a storm, and, at about 6:12 PM, crashed in the Gulf of Mexico off the coast of Alabama, beyond a marine league from shore, killing libelants' intestates and all other persons aboard. (All times are stated herein as Eastern Standard Time.)
4Respondent, unlike certain other airlines, does not maintain its own meteorological department. Instead, the dispatchers stationed in respondent's Flight-Control office in Miami are charged with responsibility for keeping respondent's flights advised of weather conditions. These dispatchers are not trained in meteorology, although such training is customary in the case of other commercial airlines.
5The United States Weather Bureau officially defines "severe turbulence" as: "Rare. Usually impossible to control aircraft. May cause structual damage." Volume III, Service Operations, Chapter B-20, Aviation Forecasts.
6Of the two dispatchers who were responsible for the safety of respondent's Flight 470 on February 14, one was of the opinion that turbulent weather on a projected flight route was unimportant in respect of the safety of the flight; and the other was unfamiliar with the official United States Weather Bureau definition of severe turbulence, was also of the opinion that the existence of low-pressure areas and turbulence on a projected flight route was unimportant, and was unaware of respondent's established rule against dispatching flights into areas of known severe turbulence.
7On the morning of February 13, 1953, a low-pressure area had developed in conjunction with a warm front over northern Mexico and southwest Texas, and had begun an eastward movement over the Gulf. Meanwhile, a high-pressure area was developing over the Texas Panhandle in the form of a deep trough, in warm air at an altitude of 10,000 feet, filling with colder air from a cold front approaching from Montana. By 7:00 AM on February 14, the cold front and high-pressure area had begun moving rapidly down over central Texas, in the direction of the low-pressure area and warm front to the south. The conjunction of the two fronts caused the low-pressure area to develop and intensify.
8The 10:33-AM regional forecast issued by the United States Weather Bureau at Miami on February 14, indicated *127 that the center of the low-pressure area was in the northwest Gulf, moving rapidly toward northwest Florida. The terminal forecast issued at New Orleans at the same time also showed the low-pressure area in the northwest Gulf, and indicated the presence of "moderate to severe" turbulence in thunderstorms. Respondent received these forecasts promptly over electronic Weather Bureau circuits.
9Respondent's Flight 917 preceded its Flight 470 by 2½ hours on the Tampa-New Orleans run across the Gulf. Flight 917 left Tampa at 2:11 PM and encountered thickening weather at 3:24 PM. Thereafter, the flight proceeded on instruments through solid clouds. Turbulence was encountered, seat belts were ordered fastened, the "No Smoking" sign was turned on, and all other precautions for turbulent-weather flying were taken. The pilot, Captain Abel, turned over to his co-pilot all supervision of power settings, so that he could keep both hands on the flight controls. Speed was reduced to minimize the effects of the severe turbulence; and terrific head- and cross-winds, and heavy rain and hail were encountered. The plane was buffeted, and pitched, rose and fell sharply in up- and down-drafts. Captain Abel, pilot of Flight 917, testified that he "was able to hold within 1,000 feet of assigned altitude with some difficulty, and it required constant changes on the power to keep airspeed under control. Turbulence was causing the ship to shake and twist around considerably. The rudder at times was forced back and forth without changing the direction of the flight. The instrument panel shook considerably * * * (and) the airplane seemed to jolt and twist from side to side." He stated further that conditions were such that at times the instruments were unreadable, and that it was "a twisting-turning type of turbulence * * * although we did have vertical turbulence at times along with it". Many passengers became ill, all were badly frightened, and many of them prayed. The stewardesses were unable to leave their seats to aid the passengers in distress. Various objects were thrown about the interior of the plane. It was discovered that although a 12-degree bearing had been allowed for a northerly set, the aircraft had nevertheless been blown miles north of its prescribed course.
10 Flight 917 reached New Orleans at 5:12 PM. Attendants had to assist passengers in disembarking because of the force of the wind. Captain Abel, who described the weather encountered as "some of the worst turbulence he had ever experienced in flights across the Gulf", ordered a structural check of his aircraft.
11The storm, described above, encountered by respondent's Flight 917 increased in intensity from the time that flight passed through it, until Flight 470 reached the area in the height of the storm, and crashed in the Gulf.
12Respondent's standing regulations required its flights to make position and weather reports to the Miami Flight-Control office at each of three check points on the Tampa-New Orleans route. Respondent's rules, as well as the Civil Air Regulations (14 CFR 41.113), also required all flights to report all unanticipated weather encountered en route, so that such weather could be reported by Flight Control to other flights which might be affected. Further, respondent's rules required all pilots to report severe weather directly to other affected flights. Nevertheless, although Flight 917 was in constant radio contact with respondent, it made no direct report at all to Flight 470 of the extreme weather conditions encountered, and no report thereof whatever until 5:24 PM, after it had landed in New Orleans, and fully two hours after turbulence was first encountered. This report was made only to Miami Flight Control, and was simply a brief message of "extreme turbulence all altitudes just east of New Orleans". At 5:35 PM, another such report was sent to Miami Flight Control, of "severe turbulence No. 1 check to New Orleans". No other reports were made, and no *128 details of the exceptionally turbulent voyage were ever reported. Further, the reports which were made were never relayed by Flight Control to Flight 470 (then already over the Gulf) until that flight asked for weather advices from Flight 917 at 5:49 PM (23 minutes before the crash), by which time Flight 470 was already surrounded by severe thunderstorms, and effective evasive action was no longer possible.
13At 4:24 PM, some twenty minutes before Flight 470 left Tampa, respondent's Flight-Control office had requested its radio operator at New Orleans to ask Flight 917 for a weather report, and to pass on to Flight 470 any unusual details. Although the New Orleans operator contacted Flight 917 three times within the next seven minutes, this request was never relayed to the Flight, and accordingly no such information was ever given to Flight 470; and the Miami Flight-Control office made no effort whatever to follow up on the request, or to check on compliance therewith.
14Flight 470 left Miami for Tampa at 3:15 PM. Its crew consisted of Captain Springer as pilot, Co-Pilot Stettner, a flight engineer and two stewardesses. Captain Springer was an experienced and cautious pilot, who was widely reputed as inclined to avoid turbulent areas. In addition to its crew of five, the plane carried 41 passengers.
15Co-Pilot Stettner was incompetent in that he was undependable in bad weather, when pilots must keep "two hands on the wheel", and rely on their co-pilots for assistance in handling aircraft controls, making radio contacts and monitoring instruments. Periodic Co-Pilot Progress Reports on the competency of Co-Pilot Stettner, made officially to respondent and maintained by it in its permanent records, describe him as completely incompetent. One such report characterizes him as "dull * * below average in radio technique and knowledge of operation procedures * * in need of special attention * * * not familiar with proper radio procedures * * * (and) no good in instrument weather". A subsequent report states that Stettner "has to be told every radio contact in detail * * * is simply afraid of instrument weather and therefore hurts rather than helps in instrument weather". A final such report, made only some eight months before the crash, describes Stettner as "tense and very nervous while on instruments", and expresses "doubt if his general nervousness and undependability can be improved". At least one of the persons who made these reports was shown to be available at the time of trial. Respondent did not produce him as a witness, nor seek to explain its failure to do so. The court finds the reports to be correct. During prior years, Stettner had been down-graded progressively from first pilot to reserve captain to co-pilot. Respondent's vice-president in charge of operations, on being asked whether he would fly on instruments with a co-pilot of whom such reports had been made, stated simply that "he wouldn't be a qualified co-pilot if he were like that". Respondent's chief pilot conceded that "a co-pilot of that type would not be desirable". Respondent's check pilot Royall at first insisted that respondent had not "ever had such a co-pilot on scheduled operations", but when shown the quoted reports on Co-Pilot Stettner, conceded that they were official, and agreed that "such a copilot should not have been sent out on an instrument clearance flight over the Gulf where thunderstorm activity and severe turbulence had been forecast". The court finds that the highest degree of skill, on the part of both pilot and copilot, is necessary for safe flying of commercial passenger aircraft in bad weather.
16Prior to leaving Miami, Captain Springer had reviewed weather conditions with the dispatcher on duty in respondent's Flight-Control office. Rapid barometric falls at Mobile, Pensacola and New Orleans indicated swift approach and intensification of the low-pressure area in the Gulf; but this information, *129 contained in Weather Bureau reports received hourly by the Flight-Control office, was not given to Captain Springer, a cautious pilot, widely known, as stated, to avoid areas of turbulence. Although respondent's operations manual required that "at stations where meteorological service or dispatch personnel are available, the captain shall consult with them" before taking off, Captain Springer did not consult the Weather Bureau meteorologists at Miami airfield. All Weather Bureau meteorologists on duty at that time, were then of the opinion that the weather situation in the Gulf was deteriorating rapidly and continuously.
17Flight 470 landed at Tampa at 4:15 PM, completing the first leg of its voyage. It will be recalled that, as noted in finding 13 above, at 4:24 PM, while Flight 470 was still on the ground at Tampa, respondent's Flight-Control office made an abortive effort to obtain a Gulf weather report from Flight 917 for the benefit of Flight 470. At 4:23 PM, while Flight 470 was still on the ground at Tampa, respondent's Flight 11, bound from Mobile to New Orleans, encountered very heavy and severe turbulence near New Orleans and was forced to reverse course immediately and turn back to Mobile. At 4:46 PM, respondent's Flight 19, scheduled westward to New Orleans, cancelled at Pensacola because of worsening weather conditions ahead. At 4:33 PM, while Flight 470 was still on the ground at Tampa, regional forecasts were issued by the United States Weather Bureau offices at Miami and New Orleans. The New Orleans forecast advised of a "wave" or low-pressure area 100 miles southwest of Grand Isle and warned of "turbulence moderate to severe in thunderstorms". The Miami forecast advised of a "rapidly moving wave about 100 miles south of Pensacola * * * (with) a cold front south-southwest from the wave * * * (and) a squall line developing about 200 miles in advance of the cold front * * * numerous thunderstorms * * * briefly severe turbulence in thunderstorms." A "Technical Manual" issued as a "Pilots' Weather Handbook" by the Civil Aeronautics Administration, states: "A `squall line' is often characterized by an almost impenetrable wall of turbulent clouds building to 40,000 feet or higher. Squall lines have within themselves some of the most turbulent weather experienced by pilots." The purport of the above forecasts was to place the center of the disturbance directly in the projected flight path of Flight 470. Although the rapidity of the movement of the disturbance to the Pensacola area was unexpected, and although other flights of respondent in the Gulf area were advised at this time that "center of low pressure area in Pensacola area and moving east", Flight 470 was never advised of these forecasts, and was never advised of the reversal of respondent's Flight 11 or of the cancellation of respondent's Flight 19. The court finds that had Captain Springer been advised of these matters, he would either have delayed the Tampa-New Orleans leg of his voyage pending improvement of the weather, or would have taken a southerly route to avoid the dangerous northeast quadrant of the storm, and to avoid cutting across its characteristic northeast track, as he had actually indicated to respondent's dispatcher at Miami he would be inclined to do, if he were advised of development of circumstances warranting such deviation.
18Flight 470 left Tampa at 4:43 PM. At 5:49 PM, the flight reported by radio that it was surrounded by "thunderstorms all quadrants". This was the first report of bad weather by Flight 470. At the same time (5:49 PM), the flight requested information as to weather conditions encountered by Flight 917. Only then did respondent summarily advise Flight 470 of Flight 917's report (made twenty-five minutes earlier at 5:24 PM) of "severe turbulence at all altitudes" between the third check point and New Orleans.
19All meteorologists who testified in the case agreed that weather reports from planes and ships on the spot, form the most reliable sources of information *130 as to weather conditions in the Gulf. The Pilots' Weather Handbook, published as a Technical Manual by the Civil Aeronautics Administration, provides: "No one can tell more about the severity of the turbulence in a thunderstorm * * * than the pilot who has just flown through that condition. That is why the Weather Bureau is anxious to obtain first-hand reports from pilots on the weather conditions as seen from the air. Pilots' reports of the weather are given the widest possible distribution." Respondent's vice-president in charge of operations testified that "it is expected of" pilots, "if they encounter any particularly severe condition, to pass on the information to other pilots." Captain Abel, the pilot of respondent's Flight 917, testified: "I wasn't concerned with any other flight coming across there * * *. That is the responsibility of Flight Control."
20At 5:50 PM, at least 22 minutes before the crash, respondent's Miami Flight-Control office received a severe-weather bulletin from the Weather Bureau Analysis Center in Washington. Although this bulletin forecast hail, severe thunderstorms and "more severe storms and severe turbulence aloft" in the region then being traversed by Flight 470, the bulletin was never transmitted to that flight, although the Flight-Control office was in radio contact with the flight several times during that interval.
21Shortly after 5:49 PM, Flight 470 advised that it was reducing power because of turbulence. Five minutes later, it requested permission to descend from 14,000 to 4,500 feet in an effort to get out of the turbulent conditions. Permission was granted at 6:00 PM. At 6:12 PM, the flight advised (its last message) that it had reached 4,500 feet at 6:10 PM. Shortly thereafter it was destroyed by the storm, and all passengers and crew were killed. The location of the plane's wreckage in the Gulf of Mexico off the Alabama coast (approximately 30:10:25 North latitude, 87:57:10 West longitude) showed that it had been blown some 50 miles north of its scheduled course.
22The only witness produced by respondent was General Milton Arnold, a former Air-Force officer and a pilot with meteorological experience, now employed by an airline association. General Arnold testified that in his opinion Flight 470 was destroyed by a tornado. Two weather experts of unimpeachable standing testified that the existence of a tornado in the area of the casualty could be considered only a remote possibility. General Arnold conceded that the Weather Bureau's forecasts of severe turbulence issued before Flight 470 left Tampa would encompass the highest degree of turbulence, including the possible presence of tornadoes. Father Eisele, another meteorologist whose testimony in a companion case was offered by repondent in this case, testified that without regard to the presence of tornadoes, the severity of the storm was such as to make it dangerous for a plane to attempt to navigate the area. The court finds that Flight 470 was not destroyed by a tornado; but that, in any event, the storm which destroyed it was of the highest degree of severe turbulence, of which respondent had ample warning, and into which it should not have permitted Flight 470 to enter.
23The crash of National Airlines Flight 470 in the Gulf of Mexico, off the coast of Alabama, on the evening of February 14, 1953, with the loss of all of its 41 passengers and crew of 5, was caused proximately by respondent's negligence, in the following respects:
aPlacing its pilot weather service in charge of dispatchers untrained in meteorology and incapable of appreciating the aviation significance of turbulent weather conditions, reports and forecasts.
bInclusion in the crew of Flight 470, of a co-pilot who, to the knowledge of respondent, was incompetent and could not be relied on to render necessary assistance to the pilot in turbulent weather.
*131 cFailure of respondent's Miami dispatcher, who gave Captain Springer his pre-flight weather briefing, to advise Captain Springer of the rapid falls in barometric pressure at New Orleans, Mobile and Pensacola which indicated swift approach toward those ports of the low-pressure area in the Gulf, and extreme intensification of the approaching storm.
dFailure of Flight 917 to advise Flight 470, or respondent's Flight-Control office for the benefit of Flight 470, of the severe weather encountered at the time it was encountered, as required by respondent's own rules and by the Civil Air Regulations; and Flight 917's failure to make a full report of these turbulent weather conditions at any time before Flight 470 was lost.
eFailure to obtain a weather report from Flight 917 in time to be of benefit to Flight 470, and failure to follow through on the abortive attempt to obtain such a report at 4:24 PM before Flight 470 left Tampa.
fFailure to advise Flight 470, still on the ground at Tampa, that respondent's Flight 11, bound westward for New Orleans, had had to turn back to Mobile because of unflyable weather.
gFailure to transmit to Flight 470, still on the ground at Tampa, the 4:33 PM Miami and New Orleans forecasts of severe turbulence directly in the path of that flight's scheduled route.
hFailure to give to Flight 470, still on the ground at Tampa, the advice given to other flights of respondent in the same region, that the center of the Gulf disturbance was in the "Pensacola area".
iFailure to advise Flight 470, then only three minutes out of Tampa, that respondent's Flight 19, bound westward for New Orleans, had cancelled at Pensacola because of severe weather ahead.
jFailure to transmit to Flight 470, Flight 917's eventual severe-turbulence report until Flight 470 itself requested the report 25 minutes later, by which time Flight 470 was already surrounded by severe thunderstorms, and it was too late for effective evasive action.
kFailure to transmit to Flight 470 the severe-turbulence Weather Bureau report received at 5:50 PM, despite the fact that respondent's ground stations had been in constant direct touch with Flight 470 during the succeeding 22 minutes.
lPermitting Flight 470 to proceed, unwarned, on a route unsafe for air travel in light of known "severe turbulent" weather conditions.
Conclusions of Law
1This Court has jurisdiction of this action.
2The action lies, and was properly brought, under Chapter 21 of Title 46 of the United States Code Annotated, § 761 et seq. (the Wrongful Death on the High Seas Act).
3The aircraft used by respondent on its Flight 470 on February 14, 1953, was not airworthy, in that her co-pilot was incompetent within the knowledge and privity of respondent. The Midland Victory, 2 Cir., 178 F.2d 243, 1950 A.M.C. 57; The Ruth Conway, 4 Cir., 171 F.2d 416, 1949 A.M.C. 17; The Denali, 9 Cir., 105 F.2d 413, 1939 A. M.C. 930; 9 Cir., 112 F.2d 952, 1940 A. M.C. 877, certiorari denied Alaska S. S. Co. v. Pacific Coast Coal Co., 311 U.S. 687, 61 S. Ct. 65, 85 L. Ed. 444.
4The death of libelant Beryl Whiteman Stiles' intestate was caused proximately by respondent's negligence, and libelant is entitled to prove her damages, and to recover them from respondent.
5The deaths of libelant N. H. Conder's intestates were caused proximately by respondent's negligence, and libelant is entitled to prove his damages, and to recover them from respondent.
6An interlocutory decree of liability will be entered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2419918/ | 997 S.W.2d 229 (1999)
David BURROW, et al., Petitioners,
v.
Carol ARCE, et al., Respondents.
No. 98-0184.
Supreme Court of Texas.
Argued November 18, 1998.
Decided July 1, 1999.
*232 Kenneth Tekell, David M. Gunn, Houston, for Petitioners.
Mike A. Hatchell, Tyler, William V. Dorsaneo, III, Dallas, William J. Skepnek, Lawrence, KS, Molly H. Hatchell, Tyler, Steven M. Smoot, Austin, for Respondents.
Justice HECHT delivered the opinion of the Court.
The principal question in this case is whether an attorney who breaches his fiduciary duty to his client may be required to forfeit all or part of his fee, irrespective of whether the breach caused the client actual damages. Like the court of appeals,[1] we answer in the affirmative and conclude that the amount of the fee to be forfeited is a question for the court, not a jury. We reverse the court of appeals' judgment only insofar as it affirms defendants' summary judgment based on affidavits we find to be conclusory.
I
Explosions at a Phillips 66 chemical plant in 1989 killed twenty-three workers and injured hundreds of others, spawning a number of wrongful death and personal injury lawsuits. One suit on behalf of some 126 plaintiffs was filed by five attorneys, David Burrow, Walter Umphrey, John E. Williams, Jr., F. Kenneth Bailey, Jr., and Wayne Reaud, and their law firm, Umphrey, Burrow, Reaud, Williams & Bailey. The case settled for something close to $190 million, out of which the attorneys received a contingent fee of more than $60 million.
Forty-nine of these plaintiffs then filed this suit against their attorneys in the Phillips accident case alleging professional misconduct and demanding forfeiture of all fees the attorneys received. More specifically, plaintiffs alleged that the attorneys, in violation of rules governing their professional conduct, solicited business through a lay intermediary,[2] failed to fully investigate and assess individual claims,[3] failed to communicate offers received and demands made,[4] entered into an aggregate settlement with Phillips of all plaintiffs' claims without plaintiffs' authority or approval,[5] agreed to limit their law practice by not representing others involved in the same incident,[6] and intimidated and coerced their clients into accepting the settlement.[7] Plaintiffs asserted causes of action for breach of fiduciary duty, fraud, violations of the Deceptive Trade PracticesConsumer Protection Act,[8] negligence, and breach of contract. The attorneys have denied any misconduct and plaintiffs' claim for fee forfeiture.
The parties paint strikingly different pictures of the events leading to this suit:
The plaintiffs contend: In the Phillips accident suit, the defendant attorneys signed up plaintiffs en masse to contingent fee contracts, often contacting plaintiffs through a union steward. In many instances the contingent fee *233 percentage in the contract was left blank and 33-1/3% was later inserted despite oral promises that a fee of only 25% would be charged. The attorneys settled all the claims in the aggregate and allocated dollar figures to the plaintiffs without regard to individual conditions and damages. No plaintiff was allowed to meet with an attorney for more than about twenty minutes, and any plaintiff who expressed reservations about the settlement was threatened by the attorney with being afforded no recovery at all.
The defendant attorneys contend: No aggregate settlement or any other alleged wrongdoing occurred, but regardless of whether it did or not, all their clients in the Phillips accident suit received a fair settlement for their injuries, but some were disgruntled by rumors of settlements paid co-workers represented by different attorneys in other suits. After the litigation was concluded, a Kansas lawyer invited the attorneys' former clients to a meeting, where he offered to represent them in a suit against the attorneys for a fee per claim of $2,000 and one-third of any recovery. Enticed by the prospect of further recovery with minimal risk, plaintiffs agreed to join this suit, the purpose of which is merely to extort more money from their former attorneys.
These factual disputes were not resolved in the district court. Instead, the court granted summary judgment for the defendant attorneys on the grounds that the settlement of plaintiffs' claims in the Phillips accident suit was fair and reasonable, plaintiffs had therefore suffered no actual damages as a result of any misconduct by the attorneys, and absent actual damages plaintiffs were not entitled to a forfeiture of any of the attorneys' fees. In disposing of all plaintiffs' claims on these grounds, the court specifically noted that factual disputes over whether the attorneys had engaged in any misconduct remained unresolved.
Before summary judgment was granted and less than two weeks before trial was set, plaintiffs amended their pleadings and named four additional plaintiffs. Defendants objected to the addition of these plaintiffs "due to the lack of service of citation and untimeliness of their appearance". In its summary judgment, the district court granted defendants' objection and struck the additional plaintiffs as parties.
All but one of the plaintiffs (Austin Gill, pro se) appealed. The court of appeals agreed with the district court that defendants had established that plaintiffs had suffered no actual damages caused by any misconduct, and thus it affirmed the summary judgment on all plaintiffs' claims except breach of fiduciary duty.[9] The court disagreed, however, that actual damages are a prerequisite for fee forfeiture.[10] Observing that Texas law has long recognized fee forfeiture as a remedy for an agent's breach of fiduciary duty to his principal with or without actual damages, the court discerned "no reason to carve out an exception for breaches of fiduciary duty in the attorney-client relationship."[11] However, the court refused to hold that fee forfeiture was either automatic or total for an attorney's breach of fiduciary duty to his client;[12] rather, the court concluded that whether a fee should be forfeited, and how much of it, depends on the following factors:
(1) the nature of the wrong committed by the attorney or law firm; (2) the character of the attorney's or firm's conduct; (3) the degree of the attorney's or firm's culpability, that is, whether the attorney committed the breach intentionally, *234 willfully, recklessly, maliciously, or with gross negligence; (4) the situation and sensibilities of all parties, including any threatened or actual harm to the client; (5) the extent to which the attorney's or firm's conduct offends a public sense of justice and propriety; and (6) the adequacy of other available remedies.[13]
The appeals court concluded that while the parties were entitled to have a jury determine whether the defendant attorneys breached their fiduciary duties, the court was required to determine the amount of any fee forfeiture because forfeiture is an equitable remedy.[14] Accordingly, the court of appeals reversed the summary judgment and remanded the case for a determination of whether the defendants breached their fiduciary duty to their former clients, and if so, what amount, if any, of their fee should be forfeited to plaintiffs.[15] The court also held that the four plaintiffs added by the amended pleadings should not have been struck.[16]
Shortly before the court of appeals' opinion issued, plaintiffs settled with three of the defendants, Walter Umphrey, John E. Williams, and Wayne Reaud. The three remaining defendants, David Burrow, F. Kenneth Bailey, Jr., and the law firm of Umphrey, Burrow, Reaud, Williams & Bailey, petitioned this Court for review. Plaintiffs (including Gill) also petitioned this Court for review.[17] We refer collectively to the petitioner-plaintiffs as "the Clients", and to the petitioner-defendants as "the Attorneys".
The Clients contend that the Attorneys' serious breaches of fiduciary duty require full forfeiture of all their fees, irrespective of whether the breaches caused actual damages, but if not, that a determination of the amount of any lesser forfeiture should be made by a jury rather than the court. The Clients also contend that their lack of actual damages has not been established as a matter of law. The Attorneys argue that no fee forfeiture can be ordered absent proof that the Clients sustained actual damages, but even if it could, no forfeiture should be ordered for the misconduct the Clients allege.
We granted both petitions.[18]
II
At the outset we consider whether the Attorneys have established as a matter of law that the Clients have suffered no actual damages as a result of any misconduct by the Attorneys. The lower courts concluded that Robert Malinak's affidavit offered by the Attorneys in support of their motion for summary judgment established that they caused the Clients no actual damages. The Clients argue that Malinak's affidavit is too conclusory to support summary judgment.
*235 An expert's opinion testimony can defeat a claim as a matter of law, even if the expert is an interested witness, such as the defendant.[19] But it is the basis of the witness's opinion, and not the witness's qualifications or his bare opinions alone, that can settle an issue as a matter of law; a claim will not stand or fall on the mere ipse dixit of a credentialed witness.[20] Thus, as we held in Anderson v. Snider, "conclusory statements made by an expert witness are insufficient to support summary judgment."[21] In that case, an attorney sued for malpractice moved for summary judgment supported by his own affidavit, which stated in substance:
I have reviewed the Plaintiff's Original Petition, my file and the relevant and material documents filed with the Court, and it is clear that I acted properly and in the best interest of [my client] when I represented her, and that I have not violated the [DTPA]. I did not breach my contract with [my client], and have not been guilty of any negligence or malpractice. [My client] has suffered no damages or legal injury as a result of my representation of her.[22]
We held that this affidavit, which gave no basis for its conclusions, was nothing more than a sworn denial of plaintiff's claims and could not support summary judgment.[23]
Here, Malinak's affidavit states that his opinions are based on the pleadings and evidence in the case and his experience and training as a personal injury trial lawyer. The affidavit then avers in substance:
It is important as an attorney in evaluating cases for settlement to consider the underlying liability facts involved, and in this instance the underlying facts with reference to the Phillips explosion of 1989. In my opinion it is critical to the settlement evaluation of the cases arising out of that explosion to consider the identity of the employer of the plaintiffs and/or decedents at the time of the explosion. Moreover, I believe that it is important to consider the elements of damages available to each Plaintiff, whether it be an injury case, or a death case, and to consider the losses that occurred to each Plaintiff as a result of the explosion. I have considered the underlying liability facts, the employment status of the Plaintiffs and/or decedents, and have considered the elements of and damage facts on each Plaintiff to render my opinions expressed in this Affidavit.
The Plaintiffs were caused no damages by reason of any and/or all of the allegations made by them against the Defendants. Each and all of the Plaintiffs were reasonably and fairly compensated by way of settlement for those elements of damages that were available to them as Plaintiffs in the cases against Phillips, taking into account the employment, liability, and injury facts involved. I have not addressed issues concerning the allegations of malpractice, wrongdoings, or omissions which allegedly resulted in damages to Plaintiffs. Irrespective of the validity of those allegations, it is my opinion that the Plaintiffs have not been damaged as a result of any of these allegations, whether groundless or valid.
These assertions are as deficient as those in the Anderson affidavit. The affidavit says no more than that Malinak, an experienced attorney, has considered the relevant *236 facts and concluded that the Clients' settlements were all fair and reasonable. Malinak's training and experience qualify him to offer opinions on the fairness of the Clients' settlements, but he cannot simply say, "Take my word for it, I know: the settlements were fair and reasonable." Credentials qualify a person to offer opinions, but they do not supply the basis for those opinions. The opinions must have a reasoned basis which the expert, because of his "knowledge, skill, experience, training, or education",[24] is qualified to state. That basis is missing in Malinak's affidavit. He does not explain why the settlements were fair and reasonable for each of the Clients. His affidavit, like the affidavit in Anderson, is nothing more than a sworn denial of plaintiffs' claims and no more entitles the Attorneys to summary judgment than a lawyer's equally conclusory affidavit stating that the Clients had suffered $10 million damages would entitle them to summary judgment.
In reaching the contrary conclusion, the court of appeals reasoned:
Malinack [sic] could have addressed the issues by listing each plaintiff separately, with the relevant data concerning them. Although that may have been clearer and more direct, we are of the opinion it is not required. As written, the affidavit gave appellants enough information, by referring to the specific items relied on, to enable them to controvert it.[25]
The issue, however, is not whether Malinak's affidavit was controvertible; it clearly was. The Clients could simply have filed an affidavit by an attorney who had reviewed all the relevant facts and concluded that the settlements were not fair and reasonable. There is no suggestion that such testimony was unavailable to the Clients or even hard to come by. Instead, the issue is whether Malinak's affidavit states a sufficient basis for his opinions. Malinak might have analyzed the Clients' injuries by type, or related settlement amounts to medical reports and expenses, or compared these settlements to those of similar claims, or provided other information showing a relationship between the plaintiffs' circumstances and the amounts received. He did not do so. The absence of such information did not merely make the affidavit unclear or indirect; it deprived Malinak's opinions of any demonstrable basis. We therefore conclude that summary judgment could not rest on Malinak's affidavit.
The Attorneys argue that even if Malinak's affidavit cannot establish that the Clients suffered no actual damages, the affidavits of attorney Burrow, a defendant, and attorney Allison, can. After stating that it was his goal "to see that each of these clients were reasonably compensated for their losses sustained as a result of the Phillips explosion", Burrow, a very experienced attorney, stated:
To that end I developed the liability facts through on site inspection, discovery, and depositions. I considered the liability facts, the appropriate elements of damages for my clients, individually evaluated their cases, and I and my partners participated in the individual settlement of our individual client cases. It is my opinion that my goal was accomplished for all of the Plaintiffs now suing me.
Attorney Allison, another highly qualified attorney, stated that he was "familiar with the processes of evaluating, trying, and settling personal injury and death cases on both sides of the docket", and that "[t]he personal injury elements of recovery and `wrongful death' case elements of recovery were individually considered toward the goal of arriving at individually evaluated settlements that would fairly and reasonably compensate each Plaintiff, such goal being accomplished in each case." Neither Burrow's nor Allison's affidavit is as detailed as Malinak's. Like Malinak, Burrow *237 and Allison have substantial credentials to render expert opinions on issues of attorney practice, but their affidavits, like Malinak's, offer no basis for the opinions stated. Together, these two affidavits add nothing to the Attorneys' summary judgment evidence.
Accordingly, we conclude that the Attorneys failed to establish as a matter of law that the Clients did not suffer actual damages, and thus the Attorneys were not entitled to summary judgment dismissing the Clients' claims on that basis.
III
The Attorneys nevertheless argue that the Clients have not alleged grounds that would entitle them to forfeiture of any of the Attorneys' fees. Alternatively, the Attorneys contend that at most a portion of their fees is subject to forfeiture, and that that portion should be determined by the court rather than by a jury. The Clients counter that whether they sustained actual damages or not, the Attorneys, for breach of their fiduciary duty, should be required to forfeit all fees received, or alternatively, a portion of those fees as may be determined by a jury. These arguments thus raise four issues: (a) are actual damages a prerequisite to fee forfeiture? (b) is fee forfeiture automatic and entire for all misconduct? (c) if not, is the amount of fee forfeiture a question of fact for a jury or one of law for the court? and (d) would the Clients' allegations, if true, entitle them to forfeiture of any or all of the Attorneys' fees? We address each issue in turn.
A
To determine whether actual damages are a prerequisite to forfeiture of an attorney's fee, we look to the jurisprudential underpinnings of the equitable remedy of forfeiture. The parties agree that as a rule a person who renders service to another in a relationship of trust may be denied compensation for his service if he breaches that trust. Section 243 of the Restatement (Second) of Trusts states the rule for trustees: "If the trustee commits a breach of trust, the court may in its discretion deny him all compensation or allow him a reduced compensation or allow him full compensation."[26] Similarly, section 469 of the Restatement (Second) of Agency provides:
An agent is entitled to no compensation for conduct which is disobedient or which is a breach of his duty of loyalty; if such conduct constitutes a wilful and deliberate breach of his contract of service, he is not entitled to compensation even for properly performed services for which no compensation is apportioned.[27]
Citing these two sections, section 49 of the proposed Restatement (Third) of The Law Governing Lawyers applies the same rule to lawyers, who stand in a relation of trust and agency toward their clients. Section 49 states in part: "A lawyer engaging in clear and serious violation of duty to a client may be required to forfeit some or all of the lawyer's compensation for the matter."[28]
Though the historical origins of the remedy of forfeiture of an agent's compensation are obscure, the reasons for the remedy are apparent. The rule is founded both on principle and pragmatics. In principle, a person who agrees to perform compensable services in a relationship of trust and violates that relationship breaches the agreement, express or implied, on which the right to compensation is based. The person is not entitled to be paid when he has not provided the loyalty bargained for *238 and promised. Thus, for example, comment a to section 243 of the Restatement (Second) of Trusts explains:
When the compensation of the trustee is reduced or denied, the reduction or denial is not in the nature of an additional penalty for the breach of trust but is based upon the fact that the trustee has not rendered or has not properly rendered the services for which compensation is given.[29]
Along the same lines, comment b to section 49 of the proposed Restatement (Third) of The Law Governing Lawyers explains: "The remedy of fee forfeiture presupposes that a lawyer's clear and serious violation of a duty to a client destroys or severely impairs the client-lawyer relationship and thereby the justification of the lawyer's claim to compensation."[30] Pragmatically, the possibility of forfeiture of compensation discourages an agent from taking personal advantage of his position of trust in every situation no matter the circumstances, whether the principal may be injured or not. The remedy of forfeiture removes any incentive for an agent to stray from his duty of loyalty based on the possibility that the principal will be unharmed or may have difficulty proving the existence or amount of damages. In other words, as comment b to section 49 of the proposed Restatement (Third) of The Law Governing Lawyers states, "[f]orfeiture is also a deterrent."[31]
To limit forfeiture of compensation to instances in which the principal sustains actual damages would conflict with both justifications for the rule. It is the agent's disloyalty, not any resulting harm, that violates the fiduciary relationship and thus impairs the basis for compensation. An agent's compensation is not only for specific results but also for loyalty. Removing the disincentive of forfeiture except when harm results would prompt an agent to attempt to calculate whether particular conduct, though disloyal to the principal, might nevertheless be harmless to the principal and profitable to the agent. The main purpose of forfeiture is not to compensate an injured principal, even though it may have that effect. Rather, the central purpose of the equitable remedy of forfeiture is to protect relationships of trust by discouraging agents' disloyalty.
In the one case in which we have considered the subject, Kinzbach Tool Co. v. Corbett-Wallace Corp.,[32] this Court held that an agent was required to forfeit a secret commission received from a conflicting interest even though the principal was unharmed. There, an oil field tool company, Corbett-Wallace, wanted to sell its sales rights contract on a patented tool, the whipstock, to another company, Kinzbach Tool, and was willing to go as low as $20,000 on the price. Corbett-Wallace contacted a Kinzbach Tool employee, Turner, and offered him a secret commission if he could get Kinzbach Tool to buy the whipstock contract. Corbett-Wallace instructed Turner not to disclose its bottom-line price to his employer but to get as large an offer as possible. Turner approached his superiors about buying the contract without disclosing his conversations with Corbett-Wallace or the price it was willing to take. Turner's superiors told him that Kinzbach Tool would pay as much as $25,000 for the contract and asked him to find out what price Corbett-Wallace would take. Turner did not tell his employer that Corbett-Wallace was willing to accept $5,000 less than Kinbach Tool was willing to offer. Kinzbach Tool bought the whipstock contract for $25,000, payable in installments, and Corbett-Wallace agreed to pay Turner a $5,000 commission. When Kinzbach Tool learned of *239 Turner's secret commission arrangement, it sued Corbett-Wallace and Turner, claiming that the secret commission should be credited to the sale price. We agreed, holding that Turner had breached his fiduciary duty to his employer.[33] Rejecting Corbett-Wallace's argument that the commission should not be forfeited because Kinzbach Tool paid no more for the whipstock contract than it was worth, we explained:
It is beside the point for either Turner or Corbett to say that Kinzbach suffered no damages because it received full value for what it has paid and agreed to pay. A fiduciary cannot say to the one to whom he bears such relationship: You have sustained no loss by my misconduct in receiving a commission from a party opposite to you, and therefore you are without remedy. It would be a dangerous precedent for us to say that unless some affirmative loss can be shown, the person who has violated his fiduciary relationship with another may hold on to any secret gain or benefit he may have thereby acquired. It is the law that in such instances if the fiduciary "takes any gift, gratuity, or benefit in violation of his duty, or acquires any interest adverse to his principal, without a full disclosure, it is a betrayal of his trust and a breach of confidence, and he must account to his principal for all he has received."[34]
Texas courts of appeals,[35] as well as courts in other jurisdictions[36] and respected commentators,[37] have also held that forfeiture *240 is appropriate without regard to whether the breach of fiduciary duty resulted in damages.
The Attorneys nevertheless argue that forfeiture of an attorney's fee without a showing of actual damages encourages breach-of-fiduciary claims by clients to extort a renegotiation of legal fees after representation has been concluded, allowing them to obtain a windfall. The Attorneys warn that such opportunistic claims could impair the finality desired in litigation settlements by leaving open the possibility that the parties, having resolved their differences, can then assert claims against their counsel to obtain more than they could by settlement of the initial litigation. The Attorneys urge that a bright-line rule making actual damages a prerequisite to fee forfeiture is necessary to prevent misuse of the remedy. We disagree. Fee forfeiture for attorney misconduct is not a windfall to the client. An attorney's compensation is for loyalty as well as services, and his failure to provide either impairs his right to compensation. While a client's motives may be opportunistic and his claims meritless, the better protection is not a prerequisite of actual damages but the trial court's discretion to refuse to afford claimants who are seeking to take unfair advantage of their former attorneys the equitable remedy of forfeiture. Nothing in the caselaw in Texas or elsewhere suggests that opportunistically motivated litigation to forfeit an agent's fee has ever been a serious problem.
The Attorneys also argue that without a determination of a client's actual damages there is nothing to measure whether the fee forfeiture is excessive in a case. The Attorneys point out that one measure of whether punitive damages are excessive is the amount of actual damages awarded. While this is true, forfeiture of an agent's compensation is not mainly compensatory, as we have already noted, nor is it mainly punitive. Forfeiture may, of course, have a punitive effect, but that is not the focus of the remedy. Rather, the central purpose of the remedy is to protect relationships of trust from an agent's disloyalty or other misconduct. Appropriate application of the remedy cannot therefore be measured by a principal's actual damages. An agent's breach of fiduciary duty should be deterred even when the principal is not damaged.
We therefore conclude that a client need not prove actual damages in order to obtain forfeiture of an attorney's fee for the attorney's breach of fiduciary duty to the client.
B
The Clients argue that an attorney who commits a serious breach of fiduciary duty to a client must automatically forfeit all compensation to the client. This, the Clients contend, is the import of our decision in Kinzbach and is necessary to thoroughly discourage attorney misconduct. But Kinzbach did not involve issues of whether forfeiture should be limited by circumstances or in amount. The agent there intentionally breached his fiduciary duty in a single, narrow transaction, and his only compensation was a commission. Our holding that his entire compensation was subject to forfeiture cannot fairly be said to require automatic, complete forfeiture of all compensation for any misconduct of an agent.
*241 Nor is automatic and complete forfeiture necessary for the remedy to serve its purpose. On the contrary, to require an agent to forfeit all compensation for every breach of fiduciary duty, or even every serious breach, would deprive the remedy of its equitable nature and would disserve its purpose of protecting relationships of trust. A helpful analogy, the parties agree, is a constructive trust, of which we have observed:
Constructive trusts, being remedial in character, have the very broad function of redressing wrong or unjust enrichment in keeping with basic principles of equity and justice.... Moreover, there is no unyielding formula to which a court of equity is bound in decreeing a constructive trust, since the equity of the transaction will shape the measure of relief granted.[38]
Like a constructive trust, the remedy of forfeiture must fit the circumstances presented. It would be inequitable for an agent who had performed extensive services faithfully to be denied all compensation for some slight, inadvertent misconduct that left the principal unharmed, and the threat of so drastic a result would unnecessarily and perhaps detrimentally burden the agent's exercise of judgment in conducting the principal's affairs.
The proposed Restatement (Third) of The Law Governing Lawyers rejects a rigid approach to attorney fee forfeiture. Section 49 states:
A lawyer engaging in clear and serious violation of duty to a client may be required to forfeit some or all of the lawyer's compensation for the matter. In determining whether and to what extent forfeiture is appropriate, relevant considerations include the gravity and timing of the violation, its wilfulness, its effect on the value of the lawyer's work for the client, any other threatened or actual harm to the client, and the adequacy of other remedies.[39]
The remedy is restricted to "clear and serious" violations of duty. Comment d to section 49 explains: "A violation is clear if a reasonable lawyer, knowing the relevant facts and law reasonably accessible to the lawyer, would have known that the conduct was wrongful."[40] The factors for assessing the seriousness of a violation, and hence "whether and to what extent forfeiture is appropriate", are set out in the rule. Elaborating on the rule, the comments to section 49 make it clear that forfeiture of fees for clear and serious misconduct is not automatic and may be partial or complete, depending on the circumstances presented. Comment a states: "A lawyer is not entitled to be paid for services rendered in violation of the lawyer's duty to a client, or for services needed to alleviate the consequences of the lawyer's misconduct."[41] And comment e observes: "Ordinarily, forfeiture extends to all fees for the matter for which the lawyer was retained...."[42] But comment e adds: "Sometimes forfeiture for the entire matter is inappropriate, for example when a lawyer performed valuable services before the misconduct began, and the misconduct was not so grave as to require forfeiture of the fee for all services."[43] And comment b expands on the necessity for exercising discretion in applying the remedy:
Forfeiture of fees, however, is not justified in each instance in which a lawyer violates a legal duty, nor is total forfeiture always appropriate. Some violations are inadvertent or do not significantly harm the client. Some can be adequately dealt with by the remedies described in Comment a or by a partial forfeiture (see Comment e). Denying *242 the lawyer all compensation would sometimes be an excessive sanction, giving a windfall to a client. The remedy of this Section should hence be applied with discretion.[44]
The Restatement's approach, as a whole, is consistent with Texas law concerning constructive trusts, and we agree with the forfeiture rule stated in section 49 as explained in the comments we have quoted. This rule, or something similar, also appears to have been adopted in most other jurisdictions that have considered the issue.[45]
The rule is not dependent on the nature of the attorney-client relationship, as the *243 court of appeals thought,[46] but applies generally in agency relationships. Thus, as we have already seen, section 243 of the Restatement (Second) of Trusts sets out a similar rule for forfeiture of a trustee's compensation: "If the trustee commits a breach of trust, the court may in its discretion deny him all compensation or allow him a reduced compensation or allow him full compensation."[47] Comment c to section 243 elaborates:
It is within the discretion of the court whether the trustee who has committed a breach of trust shall receive full compensation or whether his compensation shall be reduced or denied. In the exercise of the court's discretion the following factors are considered: (1) whether the trustee acted in good faith or not; (2) whether the breach of trust was intentional or negligent or without fault; (3) whether the breach of trust related to the management of the whole trust or related only to a part of the trust property; (4) whether or not the breach of trust occasioned any loss and whether if there has been a loss it has been made good by the trustee; (5) whether the trustee's services were of value to the trust.[48]
Section 469 of the Restatement (Second) of Agency requires forfeiture of all compensation that cannot be apportioned for properly performed services if the agent willfully and deliberately breaches his duty to his principal,[49] and as we have noted, comments to section 49 of the proposed Restatement (Third) of The Law Governing Lawyers echo this view.[50] But we do not read section 469 to mandate automatic forfeiture or preclude consideration of factors other than an agent's willfulness any more than comments to section 49 do.
Section 49 sets out considerations similar to those for trustees in applying the remedy of fee forfeiture to attorneys. As we have already noted, they are: "the gravity and timing of the violation, its wilfulness, its effect on the value of the lawyer's work for the client, any other threatened or actual harm to the client, and the adequacy of other remedies."[51] These factors are to be considered in determining whether a violation is clear and serious, whether forfeiture of any fee should be required, and if so, what amount. The list is not exclusive. The several factors embrace broad considerations which must be weighed together and not mechanically applied. For example, the "wilfulness" factor requires consideration of the attorney's culpability generally; it does not simply limit forfeiture to situations in which the attorney's breach of duty was intentional. The adequacy-of-other-remedies factor does not preclude *244 forfeiture when a client can be fully compensated by damages. Even though the main purpose of the remedy is not to compensate the client, if other remedies do not afford the client full compensation for his damages, forfeiture may be considered for that purpose.
To the factors listed in section 49 we add another that must be given great weight in applying the remedy of fee forfeiture: the public interest in maintaining the integrity of attorney-client relationships. Like the fifth factor identified by the court of appeals"the extent to which the attorney's or firm's conduct offends a public sense of justice and propriety"[52]concern for the integrity of attorney-client relationships is at the heart of the fee forfeiture remedy. The Attorneys' argument that relief for attorney misconduct should be limited to compensating the client for any injury suffered ignores the main purpose of the remedy.
Amici curiae, Professor Charles Silver and Professor Lynn Baker of the University of Texas School of Law, argue that section 49 of the proposed Restatement (Third) of The Law Governing Lawyers differs from the rule applicable to other agency relationships and is bad policy. They contend that in general the remedy of forfeiture applies only when the agent is suing for payment of compensation, and for a good reason. A principal dissatisfied with an agent's conduct, they argue, should terminate the agency and withhold compensation; the principal should not be allowed to wait until after the agent has completed his service and then try to take unfair advantage by suing to recover compensation already paid. We disagree that section 49 states a different rule for attorneys. As we have already noted, section 469 of the Restatement (Second) of Agency provides:
An agent is entitled to no compensation for conduct which is disobedient or which is a breach of his duty of loyalty; if such conduct constitutes a wilful and deliberate breach of his contract of service, he is not entitled to compensation even for properly performed services for which no compensation is apportioned.[53]
Amici argue that this rule is limited by the caption of section 469, "Disloyalty or Insubordination as Defense".[54] But the comments to section 469 do not limit application of the rule to the defense of an agent's claim for compensation. Comment a states in part: "An agent is entitled to no compensation for a service which constitutes a violation of his duties of obedience."[55] Comment e adds that a "principal can maintain an action to recover the amount" of compensation paid to an agent to which the agent is not entitled.[56] Amici argue that the scope of the rule should not be found in the comments, but we think there is more justification for looking to the comments than to two words in the title.
Nor do we agree with amici that forfeiture should, as a matter of policy, be limited to the defense of an agent's claim for compensation. A client may well not know of his attorney's breach of fiduciary duty until after the relationship has terminated. An attorney who has clearly and seriously breached his fiduciary duty to his client should not be insulated from fee forfeiture by his client's ignorance of the matter. Nor should an attorney who has deliberately engaged in professional misconduct be allowed to put his client to the choice of terminating the relationship and risking that the outcome of the litigation may be adversely affected, or continuing the relationship despite the misconduct. The risk that a client will try to take unfair advantage of his former attorney does not justify *245 restricting forfeiture to a defensive remedy when the trial court is easily able to prevent inequity in applying the remedy.
Accordingly, we conclude that whether an attorney must forfeit any or all of his fee for a breach of fiduciary duty to his client must be determined by applying the rule as stated in section 49 of the proposed Restatement (Third) of The Law Governing Lawyers and the factors we have identified to the individual circumstances of each case.
C
The parties agree that the determination whether to afford the remedy of forfeiture must be made by the court. The Clients argue, however, that they are entitled to have the amount of the forfeiture set by a jury. The Attorneys argue, and the court of appeals held,[57] that the amount of any forfeiture is also an issue to be decided by the court.
Forfeiture of an agent's compensation, we have already explained, is an equitable remedy similar to a constructive trust. As a general rule, a jury "does not determine the expediency, necessity, or propriety of equitable relief."[58] Consistent with the rule, whether a constructive trust should be imposed must be determined by a court based on the equity of the circumstances.[59] However, when contested fact issues must be resolved before equitable relief can be determined, a party is entitled to have that resolution made by a jury.[60]
These same principles apply in deciding whether to forfeit all or part of an agent's compensation. Thus, for example, a dispute concerning an agent's culpabilitywhether he acted intentionally, with gross negligence, recklessly, or negligently, or was merely inadvertentmay present issues for a jury, as may disputes about the value of the agent's services and the existence and amount of any harm to the principal. But factors like the adequacy of other remedies and the public interest in protecting the integrity of the attorney-client relationship, as well as the weighing of all other relevant considerations, present legal policy issues well beyond the jury's province of judging credibility and resolving factual disputes. The ultimate decision on the amount of any fee forfeiture must be made by the court.
The Clients argue that the determination of the amount of fees to be paid an attorney for his services is usually a factual matter for the jury, even in actions for quantum meruit, which are also based in equity,[61] and declaratory judgment actions in which the decision whether to award attorney fees is within the trial court's sound discretion.[62] But in such actions the issue for the jury is the value of the attorney's reasonable and necessary services, not whether a reasonable fee thus determined should nevertheless be withheld for some reason. In declaratory judgment actions, once the jury has found the value of reasonable and necessary legal services, the court must decide whether the award would be equitable and just.[63] In a forfeiture case the value of the legal services rendered does not, as we have explained, dictate either the availability of the remedy or amount of the forfeiture. *246 Both decisions are inherently equitable and must thus be made by the court.
Thus, when forfeiture of an attorney's fee is claimed, a trial court must determine from the parties whether factual disputes exist that must be decided by a jury before the court can determine whether a clear and serious violation of duty has occurred, whether forfeiture is appropriate, and if so, whether all or only part of the attorney's fee should be forfeited. Such factual disputes may include, without limitation, whether or when the misconduct complained of occurred, the attorney's mental state at the time, and the existence or extent of any harm to the client. If the relevant facts are undisputed, these issues may, of course, be determined by the court as a matter of law. Once any necessary factual disputes have been resolved, the court must determine, based on the factors we have set out, whether the attorney's conduct was a clear and serious breach of duty to his client and whether any of the attorney's compensation should be forfeited, and if so, what amount. Most importantly, in making these determinations the court must consider whether forfeiture is necessary to satisfy the public's interest in protecting the attorney-client relationship. The court's decision whether to forfeit any or all of an attorney's fee is subject to review on appeal as any other legal issue.
D
Finally, the Attorneys argue that none of the misconduct the Clients have alleged justifies a forfeiture of any fees. Although the Clients make numerous allegations of misconduct against the Attorneys, the parties' arguments have tended to focus on the assertion that the Attorneys reached an aggregate settlement in violation of Rule 1.08(f) of the Texas Disciplinary Rules of Professional Conduct.[64] The Attorneys and amici curiae argue that this rule is too vague and impractical for any violation to warrant forfeiture of an attorney's fee. The lower courts did not find it necessary to address this argument, and given the difficult considerations involved, we believe it to be imprudent for us to decide the matter in the first instance without a full airing below. Even were we to address it, we could not render judgment for the Attorneys without considering whether the other alleged disciplinary rules violations might also justify forfeiture, an issue barely mentioned in all the parties' briefing. All these issues must be considered by the district court on remand.
IV
Two minor matters require brief attention.
First: The Attorneys argue that the district court correctly struck the four plaintiffs added in amended pleadings as parties. The Attorneys objected to the addition of the four plaintiffs on two grounds: that they had not served the Attorneys with citation, and that the addition was untimely. The first ground was not sufficient. Two days after plaintiffs first amended their pleadings, defendants filed a supplemental answer. The filing of an answer dispenses with the necessity of service of citation.[65] As for the second ground, the district court was obliged to allow the pleading amendment absent a showing that the defendants were surprised by it.[66] The defendants did not claim, much less show, surprise. Therefore, the four added plaintiffs should not have been struck.
Second: The court of appeals dismissed plaintiff Austin Gill's appeal as not having been timely filed. Although Gill is listed as a petitioner in this Court, petitioners do *247 not complain of the court of appeals' dismissal of his appeal. We must therefore affirm that dismissal.
* * * * *
For the reasons explained, we modify the court of appeals' judgment to reverse the district court's judgment in its entirety except as to plaintiff Austin Gill, and we remand the case to the district court for further proceedings.
NOTES
[1] 958 S.W.2d 239.
[2] See TEX. DISCIPLINARY R. PROF'L CONDUCT 7.03(b), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (1998) (TEX. STATE BAR R. art. X, § 9).
[3] See id. Rules 1.01, 2.01.
[4] See id. Rule 1.03.
[5] See id. Rule 1.08(f).
[6] See id. Rule 5.06(b).
[7] See id. Rules 1.02, 2.01.
[8] TEX. BUS. & COM.CODE §§ 17.41-.63.
[9] 958 S.W.2d at 251-256.
[10] Id. at 244-249.
[11] Id. at 246.
[12] Id. at 249-250.
[13] Id. at 250.
[14] Id. at 251.
[15] Id. at 251, 258.
[16] Id. at 258.
[17] The petitioner-plaintiffs are: Carol Arce, individually and as next friend of Lyndsey Arce and Lauren Arce; Raul S. Alvarado; David H. Anderson, Jr.; Freddie Barfield; Dorothy Barfield; Mercer Black; Richard W. Bradley, Jr.; James Karl Bryant; Sandra Bryant; Stephen Lloyd Bryant; Thomas G. Butcher; Julane Campbell, individually and as next friend of Jason Campbell, Justin Campbell, and Jaret Campbell; Dennis Mike Curry; Ricky L. Dannelley; Glenn E. Deshotel; John L. Dixon; Silverrol Ferguson; Julian Garcia, Jr.; Austin Gill; Robert F. Gudz; Joe Alan Holzworth; Wesley S. Hood; Bobby Ray Jones; James M. Kerr; Stanley P. Korenek; James L. Lauderdale; Jesse H. Luna; Ronald D. Lyon; Walter E. Marbury, Jr.; John Martinez; Patrick McCourtney; Gary McPherson; Lisa McPherson; Carol D. Montelongo; Pete Montoya III; Herbert Mosley; Terry L. Mullins; Adolfo Ochoa, Jr.; Philip Owens; Jesus R. Pena; Carl T. Richardson; Glenn W. Robbins; Johnnie Rogers; Stephen R. Ross; Amanda Ann Seaman; Terry Wayne Simpson; Allen Smith, Jr.; Helga Sieglinde Thompson; Robert A. Wash; and Calvin L. Williams.
[18] 41 TEX. SUP.CT. J. 1318 (Aug. 25, 1998).
[19] Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991) (per curiam).
[20] Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726-727 (Tex.1998) (citing General Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997)); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711-712 (Tex.1997); Schaefer v. Texas Employers' Ins. Ass'n, 612 S.W.2d 199, 202-204 (Tex.1980).
[21] 808 S.W.2d at 55.
[22] Id. at 54 (second alteration in original).
[23] Id. at 55.
[24] TEX.R. EVID. 702.
[25] 958 S.W.2d at 253.
[26] RESTATEMENT (SECOND) OF TRUSTS § 243 (1959).
[27] RESTATEMENT (SECOND) OF AGENCY § 469 (1958); see also id. § 399(k) (one remedy for a principal whose agent violates a fiduciary duty is the refusal to pay compensation).
[28] RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 49 (Proposed Final Draft No. 1, 1996).
[29] RESTATEMENT (SECOND) OF TRUSTS § 243 cmt. a (1959).
[30] RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 49 cmt. b (Proposed Final Draft No. 1, 1996).
[31] Id.
[32] 138 Tex. 565, 160 S.W.2d 509 (1942).
[33] Id. at 513.
[34] Id. at 514 (quoting United States v. Carter, 217 U.S. 286, 30 S. Ct. 515, 54 L. Ed. 769 (1910)).
[35] See, e.g., Watson v. Limited Partners of WCKT, Ltd., 570 S.W.2d 179, 182 (Tex.Civ. App.Austin, 1978, writ ref'd n.r.e.) (holding that limited partners may recover against general partner without a showing of actual damages); Russell v. Truitt, 554 S.W.2d 948, 952 (Tex.Civ.App.Fort Worth 1977, writ ref'd n.r.e.) (holding that plaintiffs were entitled to recovery of agency fees as a matter of law if the breach of fiduciary duty was proved without regard as to whether the breach caused any harm); Anderson v. Griffith, 501 S.W.2d 695, 701 (Tex.Civ.App.Fort Worth 1973, writ ref'd n.r.e) (explaining that, even though the principal was not injured, "`[t]he self-interest of the agent is considered a vice which renders the transaction voidable at the election of the principal without looking into the matter further than to ascertain that the interest of the agent exists'") (quoting Burleson v. Earnest, 153 S.W.2d 869, 874 (Tex.Civ. App.Amarillo 1941, writ ref'd w.o.m.)); see also Judwin Properties, Inc. v. Griggs & Harrison, P.C., 911 S.W.2d 498, 507 (Tex.App. Houston [1st Dist.] 1995, no writ) (stating in dicta that "[w]hen an attorney has stolen or used the interest to the detriment of his client, the plaintiff need not prove causation for breach of fiduciary duty"); Bryant v. Lewis, 27 S.W.2d 604, 608 (Tex.Civ.App.Austin 1930, writ dism'd) (holding that attorney who represented clients with conflicting interests was not entitled to any compensation for legal services rendered without addressing whether actual damages were sustained).
[36] See, e.g., Hendry v. Pelland, 73 F.3d 397, 402 (D.C.Cir.1996) ("[C]lients suing their attorney for breach of the fiduciary duty of loyalty and seeking disgorgement of legal fees as their sole remedy need prove only that their attorney breached that duty, not that the breach caused them injury."); In re Estate of Corriea, 719 A.2d 1234, 1241 (D.C.1998) (holding that the plaintiff's inability to quantify the damages suffered did "not disqualify the profits ordered disgorged as `just compensation for the wrong'") (quoting Sheldon v. Metro-Goldwyn Pictures Corp., 309 U.S. 390, 399, 60 S. Ct. 681, 84 L. Ed. 825 (1940)); Eriks v. Denver, 118 Wash.2d 451, 824 P.2d 1207, 1213 (1992) (en banc) (rejecting the argument that a finding of damages and causation is required to order fee forfeiture); Rice v. Perl, 320 N.W.2d 407, 411 (Minn.1982) (holding that the client need not prove actual harm to obtain fee forfeiture); Searcy, Denney, Scarola, Barnhart & Shipley, P.A. v. Scheller, 629 So. 2d 947, 952 (Fla.Dist.Ct.App.1993) (holding that "fee forfeiture should be considered only when an ordinary remedy like offsetting damages is plainly inadequate"); see also Frank v. Bloom, 634 F.2d 1245, 1258 (10th Cir.1980) (recognizing that "when the attorney is representing clients with actual existing conflicts of interest ... the attorney's compensation may be withheld even where no damages are shown").
[37] See, e.g., RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 49 cmt. d (Proposed Final Draft No. 1, 1996) ("But forfeiture is justified for a flagrant violation even though no harm can be proved."); Thomas D. Morgan, Sanctions and Remedies for Attorney Misconduct, 19 S. ILL. U.L.J. 343, 351 (1995) ("[T]he fee forfeiture sanction is available even where a client has suffered no loss as a result of an attorney's alleged misconduct."); 1 GEOFFREY C. HAZARD, JR. & W. WILLIAM HODES, THE LAW OF LAWYERING § 1.5:108 (2d ed. Supp. 1998) ("Generally speaking, where the claim rests on the disloyalty of the lawyer, and the remedy sought is forfeiture or disgorgement of fees already paid, rather than compensatory damages for poor service, the breach of the duty of loyalty is the harm, and the client is not required to prove causation or specific injury.").
[38] Meadows v. Bierschwale, 516 S.W.2d 125, 131 (Tex.1974).
[39] RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 49 (Proposed Final Draft No. 1, 1996).
[40] Id. cmt. d.
[41] Id. cmt. a.
[42] Id. cmt. e.
[43] Id.
[44] Id. cmt. b.
[45] See, e.g., International Materials Corp. v. Sun Corp., 824 S.W.2d 890, 895 (Mo.1992) (en banc) (holding that complete forfeiture is not warranted unless there is a clear and serious violation of the lawyer's duty destroying the client-lawyer relationship, thereby removing the justification for the lawyer's compensation, and that recovery could be in quantum meruit for benefits conferred); Kidney Ass'n of Oregon, Inc. v. Ferguson, 315 Or. 135, 843 P.2d 442, 447 (1992) (favoring consideration of factors in determining whether attorney's fee should be reduced or denied when attorney breaches duty of loyalty); In re Marriage of Pagano, 154 Ill. 2d 174, 180 Ill. Dec. 729, 607 N.E.2d 1242, 1249-1250 (1992) ("[W]hen one breaches a fiduciary duty to a principal the appropriate remedy is within the equitable discretion of the court. While the breach may be so egregious as to require the forfeiture of compensation by the fiduciary as a matter of public policy, such will not always be the case.") (citations omitted); Gilchrist v. Perl, 387 N.W.2d 412, 417 (Minn.1986) (holding that the amount of fee forfeiture should be determined by consideration of the relevant factors set out in the state's punitive damage statute); Crawford v. Logan, 656 S.W.2d 360, 365 (Tenn.1983) (holding that any misconduct of an attorney does not automatically result in fee forfeiture but rather "[e]ach case ... must be viewed in the light of the particular facts and circumstances of the case"); Cal Pak Delivery, Inc. v. United Parcel Serv., Inc., 52 Cal. App. 4th 1, 60 Cal. Rptr. 2d 207, 216 (1997) (recognizing California courts allowed partial fee recovery by the attorney "for services rendered before the ethical breach ... or ... on an unjust enrichment theory where the client's recovery was a direct result of the attorney's services"); Fairfax Sav., F.S.B. v. Weinberg & Green, 112 Md.App. 587, 685 A.2d 1189, 1209 (1996) (holding that law firm was not obligated to disgorge entire fee because firm rendered valuable legal services to clients, and because other remedies of actual and punitive damages and sanctions would be adequate); Lindseth v. Burkhart, 871 S.W.2d 693, 695 (Tenn.Ct.App.1993) (holding that fee forfeiture for a breach of fiduciary duty is not automatic but depends on the facts and circumstances of each case); Searcy, Denney, Scarola, Barnhart & Shipley, P.A. v. Scheller, 629 So. 2d 947, 953 (Fla.Dist. Ct.App.1993) (rejecting a mechanical application of fee forfeiture and approving the multi-factor approach to fee forfeiture as stated in the Restatement (Third) of The Law Governing Lawyers); Seeman v. Gumbiner (In re Life Ins. Trust Agr. of Julius F. Seeman), 841 P.2d 403, 405 (Colo.Ct.App.1992) ("[A] conflict of interest is only one of many factors to be considered in determining the award of fees; it does not mandate a denial of all compensation."); Lurz v. Panek, 172 Ill.App.3d 915, 123 Ill. Dec. 200, 527 N.E.2d 663, 671 (1988) ("[W]e do not believe defendant should have to forfeit the entire fee.... Rather, we agree with the trial court that the jury was capable of apportioning the contingent fee."); Mar Oil, S.A. v. Morrissey, 982 F.2d 830, 840 (2d Cir.1993) (stating that "[u]nder New York law, attorneys may be entitled to recover for their services, even if they have breached their fiduciary obligations"); Sweeney v. Athens Reg'l Med. Ctr., 917 F.2d 1560, 1573-1574 (11th Cir.1990) (holding that under Georgia law, if an attorney has engaged in unethical conduct, "the court may thus have a duty to require forfeiture of some portion of the fees"); Iannotti v. Manufacturers Hanover Trust Co. (In re New York, New Haven & Hartford R.R. Co.), 567 F.2d 166, 180-181 (2d Cir.1977) (holding that the court properly tailored the amount of fee forfeiture based on the nature of the breach of fiduciary duty found, as well as evidence that the attorney had, prior to the breach, performed valuable services for the estate); see also Brandon v. Hedland, Fleischer, Friedman & Cooke (In re Estate of Brandon), 902 P.2d 1299, 1317 (Alaska 1995) (noting that existing Alaska law appeared to require full fee forfeiture, but directing the trial court on remand to make alternative findings under the multi-factor approach in Kidney Ass'n "to reduce chances of a second remand following further appeal"); Hendry v. Pelland, 73 F.3d 397, 403 (D.C.Cir.1996) (leaving open the extent of forfeiture to which the plaintiffs might be entitled if they succeed in proving that the attorney breached his duty of loyalty); Musico v. Champion Credit Corp., 764 F.2d 102, 112-113 (2d Cir.1985) (describing trend in New York law away from automatic full fee forfeiture); Littell v. Morton, 369 F. Supp. 411, 425 (D.Md.1974) (characterizing strict fee forfeiture as "inequitable" unless a deliberate scheme to defraud the client exists). But see, e.g., Pessoni v. Rabkin, 220 A.D.2d 732, 633 N.Y.S.2d 338, 338 (N.Y.App.Div. 1995) (holding that an attorney who violates the disciplinary rules is not entitled to fees for any services rendered); In re Estate of McCool, 131 N.H. 340, 553 A.2d 761, 769 (1988) (holding that "an attorney who violates our rules of professional conduct by engaging in clear conflicts of interest, of whose existence he either knew or should have known, may receive neither executor's nor legal fees for services he renders an estate").
[46] 958 S.W.2d at 249 ("Thus, we find a distinction, for purposes of the potential amount of forfeiture, between the typical agency relationship and the attorney-client relationship.").
[47] RESTATEMENT (SECOND) OF TRUSTS § 243 (1959).
[48] Id. cmt. c.
[49] RESTATEMENT (SECOND) OF AGENCY § 469 (1958).
[50] RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 49 cmt. a, b (Proposed Final Draft No. 1, 1996).
[51] Id. § 49.
[52] 958 S.W.2d at 250.
[53] RESTATEMENT (SECOND) OF AGENCY § 469 (1958).
[54] Id. (emphasis added).
[55] Id. cmt. a.
[56] Id. cmt. e.
[57] 958 S.W.2d at 250-251.
[58] State v. Texas Pet Foods, Inc., 591 S.W.2d 800, 803 (Tex.1979).
[59] See Meadows, 516 S.W.2d at 131.
[60] See Texas Pet Foods, 591 S.W.2d at 803 (stating that in an equitable proceeding, "ultimate issues of fact are submitted for jury determination").
[61] See Truly v. Austin, 744 S.W.2d 934, 938 (Tex.1988).
[62] See Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex.1998).
[63] Id. at 21.
[64] See TEX. DISCIPLINARY R. PROF'L CONDUCT 1.08(f), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (1998) (TEX. STATE BAR R. art. X, § 9).
[65] TEX.R. CIV. P. 121.
[66] TEX.R. CIV. P. 63. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/91346/ | 114 U.S. 104 (1885)
THOMSON & Others
v.
WOOSTER.
Supreme Court of United States.
Argued December 1, 2, 1884.
Decided March 30, 1885.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
*108 Mr. J.C. Clayton and Mr. A.Q. Keasbey for appellants.
Mr. Frederic H. Betts for appellee.
*109 MR. JUSTICE BRADLEY delivered the opinion of the court. After stating the facts in the foregoing language, he continued:
The appellants have assigned fourteen reasons or grounds for reversing the decree. The first nine relate to the taking of the account before the master and his report thereon; the last five relate to the validity of the letters patent on which the suit was brought. It will be convenient to consider the last reasons first.
The bill, as we have seen, was taken pro confesso, and a decree pro confesso was regularly entered up, declaring that the letters patent were valid, that Douglass was the original inventor of the invention therein described and claimed, that the defendants were infringing the patent, and that they must *110 account to the complainant for the profits made by them by such infringement and for the damages he had sustained thereby; and it was referred to a master to take and state an account of such profits and to ascertain said damages.
The defendants are concluded by that decree, so far at least as it is supported by the allegations of the bill, taking the same to be true. Being carefully based on these allegations, and not extending beyond them, it cannot now be questioned by the defendants unless it is shown to be erroneous by other statements contained in the bill itself. A confession of facts properly pleaded dispenses with proof of those facts, and is as effective for the purposes of the suit as if the facts were proved; and a decree pro confesso regards the statements of the bill as confessed.
By the early practice of the civil law, failure to appear at the day to which the cause was adjourned was deemed a confession of the action; but in later times this rule was changed, so that the plaintiff, notwithstanding the contumacy of the defendant, only obtained judgment in accordance with the truth of the case as established by an ex parte examination. Keller, Proced. Rom. § 69. The original practice of the English Court of Chancery was in accordance with the later Roman law. Hawkins v. Crook, 2 P. Wms. 556. But for at least two centuries past bills have been taken pro confesso for contumacy. Ibid. Chief Baron Gilbert says: "Where a man appears by his clerk in court, and after lies in prison, and is brought up three times to court by habeas corpus, and has the bill read to him, and refuses to answer, such public refusal in court does amount to the confession of the whole bill. Secondly, when a person appears and departs without answering, and the whole process of the court has been awarded against him after his appearance and departure, to the sequestration; there also the bill is taken pro confesso, because it is presumed to be true when he has appeared and departs in despite of the court and withstands all its process without answering." Forum Romanum, 36. Lord Hardwicke likened a decree pro confesso to a judgment by nil dicit at common law, and to judgment for plaintiff on demurrer to the defendant's plea. Davis v. Davis, *111 2 Atk. 21. It was said in Hawkins v. Crook, qua supra, and quoted in 2 Eq. Ca. Ab. 179, that "The method in equity of taking a bill pro confesso is consonant to the rule and practice of the courts at law, where, if the defendant makes default by nil dicit, judgment is immediately given in debt, or in all cases where the thing demanded is certain; but where the matter sued for consists in damages, a judgment interlocutory is given; after which a writ of inquiry goes to ascertain the damages, and then the judgment follows." The strict analogy of this proceeding in actions of law to a general decree pro confesso in equity in favor of the complainant, with a reference to a master to take a necessary account, or to assess unliquidated damages, is obvious and striking.
A carefully prepared history of the practice and effect of taking bills pro confesso is given in Williams v. Corwin, Hopkins Ch. 471, by Hoffman, master, in a report made to Chancellor Sanford, of New York, in which the conclusion come to (and adopted by the Chancellor), as to the effect of taking a bill pro confesso, was that "when the allegations of a bill are distinct and positive, and the bill is taken as confessed, such allegations are taken as true without proofs," and a decree will be made accordingly; but "where the allegations of a bill are indefinite, or the demand of the complainant is in its nature uncertain, the certainty requisite to a proper decree must be afforded by proofs. The bill, when confessed by the default of the defendant, is taken to be true in all matters alleged with sufficient certainty; but in respect to matters not alleged with due certainty, or subjects which from their nature and the course of the court require an examination of details, the obligation to furnish proofs rests on the complainant."
We may properly say, therefore, that to take a bill pro confesso is to order it to stand as if its statements were confessed to be true; and that a decree pro confesso is a decree based on such statements, assumed to be true, 1 Smith's Ch. Pract. 153, and such a decree is as binding and conclusive as any decree rendered in the most solemn manner. "It cannot be impeached collaterally, but only upon a bill of review, or [a bill] *112 to set it aside for fraud. 1 Daniell Ch. Pr. 696, 1st Ed.;[*]Ogilvie v. Herne, 13 Ves. 563.
Such being the general nature and effect of an order taking a bill pro confesso, and of a decree pro confesso regularly made thereon, we are prepared to understand the full force of our rules of practice on the subject. Those rules, of course, are to govern so far as they apply; but the effect and meaning of the terms which they employ are necessarily to be sought in the books of authority to which we have referred.
By our rules a decree pro confesso may be had if the defendant, on being served with process, fails to appear within the time required; or if, having appeared, he fails to plead, demur or answer to the bill within the time limited for that purpose; or, if he fails to answer after a former plea, demurrer or answer is overruled or declared insufficient. The 12th Rule in Equity prescribes the time when the subpna shall be made returnable, and directs that "at the bottom of the subpna shall be placed a memorandum, that the defendant is to enter his appearance in the suit in the clerk's office on or before the day at which the writ is returnable; otherwise the bill may be taken pro confesso." The 18th Rule requires the defendant to file his plea, demurrer or answer (unless he gets an enlargement of the time) on the rule day next succeeding that of entering *113 his appearance; and in default thereof the plaintiff may at his election, enter an order (as of course) in the order book, that the bill be taken pro confesso, and thereupon the cause shall be proceeded in ex parte, and the matter of the bill may be decreed by the court at any time after the expiration of thirty days from the entry of said order, if the same can be done without an answer, and is proper to be decreed; or the plaintiff, if he requires any discovery or answer to enable him to obtain a proper decree, shall be entitled to process of attachment against the defendant to compel an answer, etc. And the 19th Rule declares that the decree rendered upon a bill taken pro confesso shall be deemed absolute, unless the court shall at the same term set aside the same, or enlarge the time for filing the answer, upon cause shown upon motion and affidavit of the defendant.
It is thus seen that by our practice, a decree pro confesso is not a decree as of course according to the prayer of the bill, nor merely such as the complainant chooses to take it; but that it is made (or should be made) by the court, according to what is proper to be decreed upon the statements of the bill, assumed to be true. This gives it the greater solemnity, and accords with the English practice, as well as that of New York. Chancellor Kent, quoting Lord Eldon, says: "Where the bill is thus taken pro confesso, and the cause is set down for hearing, the course (says Lord Eldon, in Geary v. Sheridan, 8 Ves. 192,) is for the court to hear the pleadings, and itself to pronounce the decree, and not to permit the plaintiff to take, at his own discretion, such a decree as he could abide by, as in the case of default by the defendant at the hearing." Rose v. Woodruff, 4 Johns. Ch. 547, 548. Our rules do not require the cause to be set down for hearing at a regular term, but, after the entry of the order to take the bill pro confesso, the 18th rule declares that thereupon the cause shall be proceeded in ex parte, and the matter of the bill may be decreed by the court at any time after the expiration of thirty days from the entry of such order, if it can be done without answer, and is proper to be decreed. This language shows that the matter of the bill ought at least to be opened and explained to the court when *114 the decree is applied for, so that the court may see that the decree is a proper one. The binding character of the decree, as declared in Rule 19, renders it proper that this degree of precaution should be taken.
We have been more particular in examining this subject because of the attempt made by the defendants, on this appeal, to overthrow the decree by matters outside of the bill, which was regularly taken pro confesso. From the authorities cited, and the express language of our own Rules in Equity, it seems clear that the defendants, after the entry of the decree pro confesso, and whilst it stood unrevoked, were absolutely barred and precluded from alleging anything in derogation of, or in opposition to, the said decree, and that they are equally barred and precluded from questioning its correctness here on appeal, unless on the face of the bill it appears manifest that it was erroneous and improperly granted. The attempt, on the hearing before the master, to show that the reissued patent was for a different invention from that described in the original patent, or to show that there was such unreasonable delay in applying for it as to render it void under the recent decisions of this court, was entirely inadmissible because repugnant to the decree. The defendants could not be allowed to question the validity of the patent which the decree had declared valid. The fact that the reissue was applied for and granted fourteen years after the date of the original patent would, undoubtedly, had the cause been defended and the validity of the reissued patent been controverted, been strongly presumptive of unreasonable delay; but it might possibly have been explained, and the court could not say as matter of law, and certainly, under the decree of the court, the master could not say, that it was insusceptible of explanation. And on this appeal it is surely irregular to question the allegations of the bill. If anything appears in those allegations themselves going to show that the decree was erroneous, of course it is assignable for error; but any attempt to introduce facts not embraced in those allegations, for the purpose of countervailing the decree, is manifestly improper. The introduction of the original patent, pending the appeal, was clearly irregular.
*115 The appellants have called attention to one matter in the allegations of the bill on which they rely for the purpose of showing that, as matter of law, the reissued patent must be void. It is stated in their 10th assignment of error, as follows:
"10th. For that, on the face of the bill and the patent, the reissued patent in suit was illegally granted, and therefore void, and the court should have so held; and this court is now asked to so hold, because the bill avers that during the fourteen years of the original term of the patent the validity of said letters patent was established in numerous suits in the Circuit Courts of the United States, and that all persons sued took licenses and paid therefor, as well as many others not sued, thereby averring, in substance, that the original letters patent were valid and operative:
"Wherefore, appellants ask this court to hold that the original letters patent having been valid and operative, as averred by complainant, for over fourteen years, no reissue thereafter could be legally obtained, because invalidity or inoperativeness are conditions precedent to the grant of a reissue."
The answer to this assignment is obvious. The suits brought on the original patent may have been for infringements committed against particular parts of the invention, or modes of using it and putting it into operation, as to which the specification was clear, full and sufficient; whilst, at the same time, there may have been certain other parts of the invention, or modes of using it and putting it into operation, as to which the specification was defective or insufficient, and which were not noticed until the application for reissue was made; or, in the original patent the patentee may have claimed as his own invention more than he had a right to claim as new a mistake which might be corrected at any time. At all events, the court cannot say, as mere matter of law, that this might not have been the case.
We think that the objection to the decree going to the validity of the patent, and the whole cause of action, cannot be sustained.
*116 We are then brought to the proceedings in taking the account. The errors assigned on this part of the case are based on the exceptions taken to the master's report, which have already been noticed. They resolve themselves into two principal grounds of objection: First, that the master allowed the complainant all the profits made by the defendants by the use of the patented machine in folding cloths and strips, as compared with doing the same thing by hand; whereas he should only have allowed the profits of using the complainant's patented machine as compared with a single folder, which the defendants allege was open to the public before their infringement commenced. Secondly, that the master, in allowing profits, took no account of the fact that folded strips, such as those used by the defendants, were an article of merchandise, cut and folded by different parties at a charge of only 25 cents for 144 yards, or about one-sixth of a cent per yard; whereas the defendants were charged with a profit of one-half of a cent per yard.
As to the first of these objections, it is to be observed, first, that no evidence was produced before the master to show that, during the period of the infringement, there was open to the public the use of any machine for folding a single edge, which was adapted to the work done by the defendants. The only evidence adduced for that purpose was the letters patent granted to S.P. Chapin, February 19, 1856, and the letters patent granted to J.S. McCurdy, dated February 26, 1856. No evidence was introduced to show that the folding guides described in those patents were adapted to the folding of strips for corsets, which was the work required by the defendants, and for which they used the complainant's invention. On the contrary, it was proved by the positive testimony of the complainant (and not contradicted), that the Chapin device could not be used for folding strips of materials on one or both edges for use upon corsets," for reasons fully detailed in the testimony; and that "the McCurdy device is a binder calculated and adapted to fold selvaged edged goods, such as ribbon and braid, and will fold the strip passing through it in the center only," "and cannot be used for folding raw-edged strips of cloth *117 either on one or both edges." The complainant also testified that there was no other way known to him (and he testified that he had large experience on the subject) to do work like that done by the defendants, except by hand, or in the use of another patent owned by him, namely, the Robjohn patent, dated April 19, 1864 (which was produced in evidence), which consisted of a folding guide, folding one edge in combination with a device for pressing said fold to an edge, and then passing said folded strip through a narrower folder, folding the other edge, and pressing said fold by a pressing device. No evidence was adduced by the defendants to contradict this testimony.
It is proper to remark here that the affidavits presented to the master, and those afterwards presented to the court, as grounds of the respective applications to reopen the proofs, cannot be looked into on this hearing. They form no part of the evidence taken before the master on the reference; and no error is assigned (even if error could be assigned) to the refusal of the court to refer the case back to the master for the purpose of taking further testimony.
The second objection to the report is, that the master, in estimating the profits chargeable to the defendants, did not take into account the fact that folded strips, such as those used by the defendants, were an article of merchandise, cut and folded by different parties at a charge of only 25 cents for 144 yards. To this objection it may be observed, that the evidence before the master did not show by what process such folded strips were made, nor whether they were not really made by infringing the complainant's patent. As the proof stood before the master, they must have been made by the use of the complainant's machine, for there was no other known machine by which they could have been made at any such cost. And if made by the use of complainant's machine, the inference must be that the persons making them were infringing the complainant's patent, for they are not named in the list of those to whom the complainant had granted licenses, which list was presented before the master at the defendant's request. If made by such infringement they can hardly be set up against the complainant to reduce the amount of profits made by the *118 defendants. There is something singular about this part of the case. If folded strips, suitable for the defendants' purpose, could have been procured in the market by them at such a low price as is pretended, why did they not procure them in that way after being enjoined against using the complainant's machine, instead of making them by the disadvantageous method of using a single folder and folding one edge at a time? Was it from a knowledge of the fact that the persons who folded such strips were infringing the complainant's patent, and a consequent unwillingness to become further complicated in such infringements? At all events, since the defendants chose to make their own folded strips in their own factory, in stead of going outside to purchase them, or have them made by others, they cannot justly complain of being accountable for the profits realized in using the complainant's machine for that purpose. It might have been a better financial operation to have bought of others, or employed others to make the folded strips which they required, just as, in the case of the Cawood patent, the railroad company would have done better not to have mended the ends of their battered rails, but to have had them cut off; but as they chose to perform the operation they became responsible to the patentee for the advantage derived from using his machine. Cawood Patent, 94 U.S. 695, 710. We do not think that the objection is well taken.
It follows that all the reasons of appeal must be overruled.
No error, or ground of appeal, is assigned upon the refusal of the court below to refer the cause back to the master for the purpose of re-opening the proofs, although some observations on that point are submitted in the brief of the appellants. We think that that matter was fairly addressed to the discretion of the court, and cannot properly be made the ground of objection on this appeal. New evidence, discovered after the hearing before the master is closed, may, in proper cases, be ground for a bill of review, on which issue may be joined and evidence adduced by both parties in the usual way. The defendants are not concluded by the refusal of the court, on mere affidavits, to refer the cause back to the master. An examination, however, of the affidavits presented to the court, *119 does not convince us that a farther inquiry should have been ordered.
In thus considering the case on its merits, as presented by the evidence taken before the master, his report thereon, and the exceptions to such report, we have deemed it unnecessary to make any remarks as to the status of a defendant before a master on a reference under a decree pro confesso. Both parties in this case seem to have taken for granted that the rights of the defendants were the same as if the decree had been made upon answer and proofs. In the English practice, it is true, as it existed at the time of the adoption of our present Rules (in 1842), the defendant, after a decree pro confesso and a reference for an account, was entitled to appear before the master and to have notice of, and take part in, the proceedings, provided he obtained an order of the court for that purpose, which would be granted on terms. 2 Daniell Ch. Pr. 804, 1st Ed.; Ditto. 1358, 2d Ed. by Perkins; Heyn v. Heyn, Jacob, 49. The former practice in the Court of Chancery of New York was substantially the same. 1 Hoffman Ch. Pr. 520; 1 Barb. Ch. Pr. 479. In New Jersey, except in plain cases of decree for foreclosure of a mortgage, (where no reference is required), the matter is left to the discretion of the court. Sometimes notice is ordered to be given to the defendant to attend before the master, and sometimes not; as it is also in the Chancellor's discretion to order a bill to be taken pro confesso for a default, or to order the complainant to take proofs to sustain the allegations of the bill. Nixon Dig., Art. Chancery, § 21; Gen. Orders in Chancery, XIV., 3-7; Brundage v. Goodfellow, 4 Halst. Ch. 513.
As we have seen, by our 18th Rule in Equity it is provided that if the defendant make default in not filing his plea, demurrer or answer in proper time, the plaintiff may, as one alternative, enter an order as of course that the bill be taken pro confesso, "and thereupon the cause shall be proceeded in ex parte." The old Rules, adopted in 1822, did not contain this ex parte clause; they simply declared that if the defendant failed to appear and file his answer within three months after appearance day, the plaintiff might take the bill for confessed, *120 and that the matter thereof should be decreed accordingly; the decree to be absolute unless cause should be shown at the next term. See Equity Rules VI. and X. of 1822, 7 Wheat. VII, and Pendleton v. Evans, 4 Wash. C.C. 335; O'Hara v. McConnell, 93 U.S. 150. Under these rules the English practice was left to govern the subsequent course of proceeding, by which, as we have seen, the defendant might have an order to permit him to appear before the master, and be entitled to notice. Whether under the present rule a different practice was intended to be introduced is a question which it is not necessary to decide in this case.
The decree of the Circuit Court is affirmed.
NOTES
[*] Note by the Court. Reference is made to the 1st Edition of Daniell (pub. 1837) as being, with the 2d Edition of Smith's Practice (published the same year), the most authoritative work on English Chancery Practice in use in March, 1842, when our Equity Rules were adopted. Supplemented by the General Orders made by Lords Cottenham and Langdale in August, 1841 (many of which were closely copied in our own Rules), they exhibit that "present practice of the High Court of Chancery in England," which by our 90th Rule was adopted as the standard of equity practice in cases where the Rules prescribed by this court, or by the Circuit Court, do not apply. The 2d Edition of Mr. Daniell's work, published by Mr. Headlam in 1846, was much modified by the extensive changes introduced by the English Orders of May 8, 1845; and the 3d Edition, by the still more radical changes introduced by the Orders of April, 1850, the Statute of 15 & 16 Vict. c. 86, and the General Orders afterwards made under the authority of that statute. Of course, the subsequent editions of Daniell are still further removed from the standard adopted by this court in 1842; but as they contain a view of the later decisions bearing upon so much of the old system as remains, they have, on that account, a value of their own, provided one is not misled by the new portions. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/8304761/ | BEJACH, J.
Tbe parties will be styled in this opinion, as in tbe lower Court, plaintiff and defendant.
.The determinative question is whether or not tbe Statute of Frauds bars tbe action in this cause. Tbe suit was brought in tbe Court of Joe 0. Lambert, Justice of tbe Peace of Dyer County, by T. J. Yarbrough against Billy Yiar, tbe warrant summoning him £<to answer complaint of T. J. Yarbrough in a plea of debt, due by J. T. Thompson, Elton Thompson and Floyd Thompson, secured by Billy Viar for groceries, medicines, gas, oil.” *242A judgment was rendered in favor of the plaintiff and against the defendant in the Justice of the Peace Court for the sum of $62.02 and same was properly appealed to the Common Law and Chancery Court of Dyer County at Dyersberg. The judgment was affirmed. An appeal was taken to this Court. The evidence is preserved in the transcript in narrative form and consequently is, on the whole, unsatisfactory. It does appear from same, however, that the plaintiff himself testified that the defendant, Yiar, brought in the Thompsons and agreed to stand for their account. His testimony is not corroborated by any other witness, although the defendant, B. B. (Billy) Yiar, admits that he brought in the Thompsons and asked Yarbrough to give them credit for certain articles purchased at the time of the introduction for which he (Yiar) would stand good. Yiar’s version is that he undertook to be responsible for the sale made at that time only, whereas the contention of plaintiff is that he agreed to stand for the entire account from that time on. In any event, whether the promise to be responsible for the indebtedness was applicable to the first purchase only, or to the entire account, makes no difference, if the Statute of" Frauds is applicable. The Statute of Frauds here relied on as set out in Section 7831 of Williams ’ Tennessee Code is as follows:
“No action shall be "brought: * * * (2) Whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person; * * *
“Unless the promise or agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by bim thereunto lawfully authorized.”
*243Some payments were made on the account which more than absorbed the initial purchases and reduced the account to $62.02. Unless the defendant is primarily liable and held for the entire account, there is no liability in this case, suit being merely for the balance on the account. It is the contention of the plaintiff that even though the goods were charged to the Thompsons, this was merely for convenience and to distinguish the goods sold to Thompson from those sold to the defendant for his own use. The strongest case cited in support of this contention is that of Hazen v. Bearden, 36 Tenn. 48. In this case $1,300 worth of goods was sold to one Morgan but were directed by Hazen to be so sold. The charge was made to Morgan, but Hazen was sued. In the Circuit Court the jury was charged ‘ ‘ To avoid the application of the Statute of Frauds which renders any agreement to pay the debt of another void unless it is in writing, the credit must be given entirely to the Defendant and not in whole or in part to Morgan. ”
The jury found in favor of the plaintiff and on appeal, the Supreme Court held that the Court’s charge as quoted above was correct, but that the explanation that for convenience the goods were charged to Morgan, although Hazen was looked to for payment having been satisfactory to the jury, was sufficient to show that the primary liability was that of Hazen rather than Morgan. This case is cited with approval, in Disney Bros. v. Campbell County, 6 Tenn. App. 569, at page 579, the suit there being against a general contractor who had authorized sale of goods to a subcontractor. The case of Hazen v. Bearden was also cited with approval in Watson v. Wells, 20 Tenn. App. 611, at page 615, 103 S. W. (2d) 30, at page 32, where the law was stated to be “ where goods were *244delivered to one, but credit was extended to the promis-sor, it need not be in writing and the promissor is liable.”
This case with the above quotation is cited with approval in Johnson v. Lane, 164 Tenn. 234, 47 S. W. (2d) 554, which in turn is cited with approval in the very recent case of Buice v. Scruggs Equipment Co., 194 Tenn. 129, page 138, 250 S. W. (2d) 44. Although Yiar denies having stood for the entire account and there is no positive evidence other than that of the plaintiff, himself, to the contrary, this becomes immaterial if the Statute of F'rauds applies. We are of the opinion that the evidence is not sufficient to establish primary liability against Viar.
There is another point raised in the case. The trial judge held that Viar was estopped to plead the Statute of Frauds. We find no basis for any estoppel. Either the promise was made orally (there is no contention that it was in writing), or it was not made. In any event, if it was made and the goods were delivered to the Thompsons on their own credit, even though the promise of Yiar was relied on as to suretyship, the Statute of Frauds covers the transaction and no recovery can be had.
The defendant, Yiar, insists that the warrant itself is conclusive as to the indebtedness being due primarily from the Thompsons, and we are inclined to agree with him.
It is the opinion of this Court that the Statute of Frauds is applicable in this case and that, whether or not the oral promise by Yiar was made as contended for by the plaintiff, Yarbrough, in any event, since same is within the Statute of Frauds, defendant Yiar can not be held. It follows that the judgment of the lower Courts must be reversed and the case dismissed at the costs of the appellee, the plaintiff T. J. Yarbrough, and his surety on the cost bond in the lower Court.
Avery, P. J. (W.S.), and Carney, J., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/91385/ | 114 U.S. 417 (1885)
EX PARTE WILSON.
Supreme Court of United States.
Submitted December 15, 1884.
Decided March 30, 1885.
ORIGINAL.
*420 Mr. Alfred Russell for petitioner.
Mr. Assistant Attorney-General Maury, contra.
MR. JUSTICE GRAY, after stating the facts in the foregoing language, delivered the opinion of the court.
It is well settled by a series of decisions that this court, having *421 no jurisdiction of criminal cases by writ of error or appeal, cannot discharge on habeas corpus a person imprisoned under the sentence of a Circuit or District Court in a criminal case, unless the sentence exceeds the jurisdiction of that court, or there is no authority to hold him under the sentence. Ex parte Watkins, 3 Pet. 193, and 7 Pet. 568; Ex parte Lange, 18 Wall. 163; Ex parte Parks, 93 U.S. 18; Ex parte Siebold, 100 U.S. 371; Ex parte Curtis, 106 U.S. 371; Ex parte Carll, 106 U.S. 521; Ex parte Yarbrough, 110 U.S. 651; Ex parte Crouch, 112 U.S. 178; Ex parte Bigelow, 113 U.S. 328.
None of the grounds on which the petitioner relies, except the first, require extended discussion.
The provision of Rev. Stat. § 1022, derived from the Civil Rights Act of May 30, 1870, ch. 114, § 8, authorizing certain offences to be prosecuted either by indictment or by information, does not preclude the prosecution by information of other offences of such a grade as may be so prosecuted consistently with the Constitution and laws of the United States.
The objection of variance between the conviction and the sentence is not sustained by the record. The first count is for unlawfully having in possession, with intent to sell, an obligation engraved and printed after the similitude of securities issued under authority of the United States, and the copy annexed and referred to in that count is of such an obligation. Both the verdict and the sentence are general, and therefore valid if one count is good. United States v. Snyder, 112 U.S. 216. The mis-recital of the verdict, in the statement of the intermediate inquiry whether the prisoner had aught to say why sentence should not be pronounced against him, is no more than an irregularity or error, not affecting the jurisdiction of the court.
The omission of the record to state, as in Ex parte Karstendick, 93 U.S. 396, that there was no suitable penitentiary within the State, and that the Attorney-General had designated the House of Correction at Detroit as a suitable place of imprisonment outside the State, is even less material.
The certified copy of the record of the sentence to imprisonment in the Detroit House of Correction, if valid upon its *422 face, is sufficient to authorize the keeper to hold the prisoner, without any warrant or mittimus. People v. Nevins, 1 Hill (N.Y.), 154.
But if the crime of which the petitioner was accused was an infamous crime, within the meaning of the Fifth Amendment of the Constitution, no court of the United States had jurisdiction to try or punish him, except upon presentment or indictment by a grand jury.
We are therefore necessarily brought to the determination of the question whether the crime of having in possession, with intent to sell, an obligation engraved and printed after the similitude of a public security of the United States, punishable by fine of not more than $5,000, or by imprisonment at hard labor not more than fifteen years, or by both, is an infamous crime, within the meaning of this Amendment of the Constitution.
The first provision of this Amendment, which is all that relates to this subject, is in these words: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger."
The scope and effect of this, as of many other provisions of the Constitution, are best ascertained by bearing in mind what the law was before.
Mr. William Eden (afterward Lord Auckland) in his Principles of Penal Law, which passed through three editions in England and at least one in Ireland within six years before the Declaration of Independence, observed, "There are two kinds of infamy; the one founded in the opinions of the people respecting the mode of punishment; the other in the construction of law respecting the future credibility of the delinquent." Eden's Principles of Penal Law, ch. 7, § 5.
At that time, it was already established law, that the infamy which disqualified a convict to be a witness depended upon the character of his crime, and not upon the nature of his punishment. Pendock v. McKinder, Willes, 665; Gilb. Ev. 143; 2 Hawk. ch. 46, § 102; The King v. Priddle, 1 Leach (4th ed.) *423 442. The disqualification to testify appears to have been limited to those adjudged guilty of treason, felony, forgery, and crimes injuriously affecting by falsehood and fraud the administration of justice, such as perjury, subornation of perjury, suppression of testimony by bribery, conspiring to accuse one of crime, or to procure the absence of a witness; and not to have been extended to cases of private cheats, such as the obtaining of goods by false pretences, or the uttering of counterfeit coin or forged securities. 1 Greenl. Ev. § 373; Utley v. Merrick, 11 Met. 302; Fox v. Ohio, 5 How. 410, 433, 434.
But the object and the very terms of the provision in the Fifth Amendment show that incompetency to be a witness is not the only test of its application.
Whether a convict shall be permitted to testify is not governed by a regard to his rights or to his protection, but by the consideration whether the law deems his testimony worthy of credit upon the trial of the rights of others. But whether a man shall be put upon his trial for crime without a presentment or indictment by a grand jury of his fellow citizens depends upon the consequences to himself if he shall be found guilty.
By the law of England, informations by the Attorney-General, without the intervention of a grand jury, were not allowed for capital crimes, nor for any felony, by which was understood any offence which at common law occasioned a total forfeiture of the offender's lands, or goods, or both. 4 Bl. Com. 94, 95, 310. The question whether the prosecution must be by indictment, or might be by information, thus depended upon the consequences to the convict himself. The Fifth Amendment, declaring in what cases a grand jury should be necessary, and in effect affirming the rule of the common law upon the same subject, substituting only, for capital crimes or felonies, "a capital or otherwise infamous crime," manifestly had in view that rule of the common law, rather than the rule on the very different question of the competency of witnesses.
The leading word "capital" describing the crime by its punishment only, the associated words "or otherwise infamous crime" must, by an elementary rule of construction, include crimes subject to any infamous punishment, even if they should *424 be held to include also crimes infamous in their nature, independently of the punishment affixed to them.
A reference to the history of the proposal and adoption of this provision of the Constitution confirms this conclusion. It had its origin in one of the Amendments, in the nature of a bill of rights, recommended by the Convention by which the State of Massachusetts in 1788 ratified the original Constitution, and as so recommended was in this form: "No person shall be tried for any crime, by which he may incur an infamous punishment, or loss of life, until he be first indicted by a grand jury, except in such cases as may arise in the government and regulation of the land and naval forces." Journal Massachusetts Convention 1788 (ed. 1856) 80, 84, 87; 2 Elliot's Debates, 177. As introduced by Mr. Madison in 1789 at the first session of the House of Representatives of the United States, it stood thus: "In all crimes punishable with loss of life or member, presentment or indictment by a grand jury shall be an essential preliminary." Being referred to a committee, of which Mr. Madison was a member, it was reported back in substantially the same form in which it was afterwards approved by Congress, and ratified by the States. 1 Annals of Congress, 435, 760.
Mr. Dane, one of the most learned lawyers of his time, and who as a member of the Continental Congress took a principal part in framing the Ordinance of 1787 for the government of the Northwest Territory, assumes it as unquestionable that, by virtue of the Amendment of the Constitution, informations "cannot be used where either capital or infamous punishment is inflicted." 7 Dane Ab. 280. Judge Cooley has expressed a similar opinion. Cooley, Principles of Constitutional Law, 291.
The only mention of informations in the first Crimes Act of the United States is in the clause providing that no person "shall be prosecuted, tried or punished for an offence, not capital, nor for any fine or forfeiture under any penal statute, unless the indictment or information for the same shall be found or instituted within two years from the time of committing the offence, or incurring the fine or forfeiture." Act of April *425 30, 1790, ch. 9, § 32; 1 Stat. 119. For very many years afterwards, informations were principally, if not exclusively, used for the recovery of fines and forfeitures, such as those imposed by the revenue and embargo laws. Acts of July 31, 1789, ch. 5, § 27, 1 Stat. 43; March 26, 1804, ch. 40, § 3, and March 1, 1809, ch. 24, § 18, 2 Stat. 290, 532; United States v. Hill, 1 Brock. 156, 158; United States v. Mann, 1 Gallison, 3, 177; Walsh v. United States, 3 Woodb. & Min. 341. Mr. Justice Story, writing in 1833, said: "This process is rarely recurred to in America; and it has never yet been formally put into operation by any positive authority of Congress, under the national Government, in mere cases of misdemeanor; though common enough in civil prosecutions for penalties and forfeitures." Story on the Constitution, § 1780.
The informations which passed without objection in United States v. Isham, 17 Wall. 496, and United States v. Buzzo, 18 Wall. 125, were for violations of the stamp laws, punishable by fine only. And the offence which Mr. Justice Field and Judge Sawyer held in United States v. Waller, 1 Sawyer, 701, might be prosecuted by information, is there described as "an offence not capital or otherwise infamous," and, as appears by the statement of Judge Deady in United States v. Block, 4 Sawyer, 211, 213, was the introduction of distilled spirits into Alaska, punishable only by fine of not more than $500, or imprisonment not more than six months. Act of July 27, 1868, ch. 273, § 4; 15 Stat. 241.
Within the last fifteen years, prosecutions by information have greatly increased, and the general current of opinion in the Circuit and District Courts has been towards sustaining them for any crime, a conviction of which would not at common law have disqualified the convict to be a witness. United States v. Shepard, 1 Abbott U.S. 431; United States v. Maxwell, 3 Dillon, 275; United States v. Block, 4 Sawyer, 211; United States v. Miller, 3 Hughes, 553; United States v. Baugh, 4 Hughes, 501; United States v. Yates, 6 Fed. Rep. 861; United States v. Field, 21 Blatchford, 330; In re Wilson, 18 Fed. Rep. 33.
But, for the reasons above stated, having regard to the object *426 and the terms of the first provision of the Fifth Amendment, as well as to the history of its proposal and adoption, and to the early understanding and practice under it, this court is of opinion that the competency of the defendant, if convicted, to be a witness in another case is not the true test; and that no person can be held to answer, without presentment or indictment by a grand jury, for any crime for which an infamous punishment may be imposed by the court.
The question is whether the crime is one for which the statutes authorize the court to award an infamous punishment, not whether the punishment ultimately awarded is an infamous one. When the accused is in danger of being subjected to an infamous punishment if convicted, he has the right to insist that he shall not be put upon his trial, except on the accusation of a grand jury.
Nor can we accede to the proposition, which has been sometimes maintained, that no crime is infamous, within the meaning of the Fifth Amendment, that has not been so declared by Congress. See United States v. Wynn, 3 McCrary, 266, and 11 Fed. Rep. 57; United States v. Petit, 11 Fed. Rep. 58; United States v. Cross, 1 McArthur, 149. The purpose of the Amendment was to limit the powers of the legislature, as well as of the prosecuting officers, of the United States. We are not indeed disposed to deny that a crime, to the conviction and punishment of which Congress has superadded a disqualification to hold office, is thereby made infamous. United States v. Waddell, 112 U.S. 76, 82. But the Constitution protecting every one from being prosecuted, without the intervention of a grand jury, for any crime which is subject by law to an infamous punishment, no declaration of Congress is needed to secure, or competent to defeat, the constitutional safeguard.
The remaining question to be considered is whether imprisonment at hard labor for a term of years is an infamous punishment.
Infamous punishments cannot be limited to those punishments which are cruel or unusual; because, by the Seventh Amendment of the Constitution, "cruel and unusual punishments" are wholly forbidden, and cannot therefore be lawfully *427 inflicted even in cases of convictions upon indictments duly presented by a grand jury.
By the first Crimes Act of the United States, forgery of public securities, or knowingly uttering forged public securities with intent to defraud, as well as treason, murder, piracy, mutiny, robbery, or rescue of a person convicted of a capital crime, was punishable with death; most other offences were punished by fine and imprisonment; whipping was part of the punishment of stealing or falsifying records, fraudulently acknowledging bail, larceny of goods, or receiving stolen goods; disqualification to hold office was part of the punishment of bribery; and those convicted of perjury or subornation of perjury, besides being fined and imprisoned, were to stand in the pillory for one hour, and rendered incapable of testifying in any court of the United States. Act of April 30, 1790, ch. 9; 1 Stat. 112-117; Mr. Justice Wilson's Charge to the Grand Jury in 1791, 3 Wilson's Works, 380, 381.
By that act, no provision was made for imprisonment at hard labor. But the punishment of both fine and imprisonment at hard labor was prescribed by later statutes, as, for instance, by the act of April 21, 1806, ch. 49, for counterfeiting coin, or uttering or importing counterfeit coin; and by the act of March 3, 1825, ch. 65, for perjury, subornation of perjury, forgery and counterfeiting, uttering forged securities or counterfeit money, and other grave crimes. 2 Stat. 404; 4 Stat. 115. Since the punishments of whipping and of standing in the pillory were abolished by the act of February 28, 1839, ch. 36, § 5; 5 Stat. 322; imprisonment at hard labor has been substituted for nearly all other ignominious punishments, not capital. And by the act of March 3, 1825, ch. 65, § 15, re-enacted in Rev. Stat. § 5542, any sentence of imprisonment at hard labor may be ordered to be executed in a State prison or penitentiary. 4 Stat. 118.
What punishments shall be considered as infamous may be affected by the changes of public opinion from one age to another. In former times, being put in the stocks was not considered as necessarily infamous. And by the first Judiciary Act of the United States, whipping was classed with moderate *428 fines and short terms of imprisonment in limiting the criminal jurisdiction of the District Courts to cases "where no other punishment than whipping, not exceeding thirty stripes, a fine not exceeding one hundred dollars, or a term of imprisonment not exceeding six months, is to be inflicted." Act of September 24, 1789, ch. 20, § 9; 1 Stat. 77. But at the present day either stocks or whipping might be thought an infamous punishment.
For more than a century, imprisonment at hard labor in the State prison or penitentiary or other similar institution has been considered an infamous punishment in England and America.
Among the punishments "that consist principally in their ignominy," Sir William Blackstone classes "hard labor, in the house of correction or otherwise," as well as whipping, the pillory or the stocks. 4 Bl. Com. 377. And Mr. Dane, while treating it as doubtful whether confinement in the stocks or in the house of correction is infamous, says, "Punishments, clearly infamous, are death, gallows, pillory, branding, whipping, confinement to hard labor, and cropping." 2 Dane Ab. 569, 570.
The same view has been forcibly expressed by Chief Justice Shaw. Speaking of imprisonment in the State prison, which by the statutes of Massachusetts was required to be at hard labor, he said: "Whether we consider the words `infamous punishment' in their popular meaning, or as they are understood by the Constitution and laws, a sentence to the State prison, for any term of time, must be considered as falling within them. The convict is placed in a public place of punishment, common to the whole State, subject to solitary imprisonment, to have his hair cropped, to be clothed in conspicuous prison dress, subjected to hard labor without pay, to hard fare, coarse and meagre food, and to severe discipline. Some of these a convict in the house of correction is subject to; but the house of correction, under that and the various names of workhouse and bridewell, has not the same character of infamy attached to it. Besides, the State prison, for any term of time, is now by law substituted for all the ignominious punishments formerly in use; and, unless this is infamous, *429 then there is now no infamous punishment other than capital." Jones v. Robbins, 8 Gray, 329, 349. In the same case, Mr. Justice Merrick, while dissenting from the rest of the court upon the question whether under the words "the law of the land" in the Constitution of Massachusetts an indictment by a grand jury was essential to a prosecution for a crime punishable by imprisonment in the State prison, and taking a position upon that question more accordant with the recent judgment of this court in Hurtado v. California, 110 U.S. 516, yet concurred with the other judges in holding that such imprisonment at hard labor was an infamous punishment. 8 Gray, 370-372.
Imprisonment at hard labor, compulsory and unpaid, is, in the strongest sense of the words, "involuntary servitude for crime," spoken of in the provision of the Ordinance of 1787, and of the Thirteenth Amendment of the Constitution, by which all other slavery was abolished.
Deciding nothing beyond what is required by the facts of the case before us, our judgment is that a crime punishable by imprisonment for a term of years at hard labor is an infamous crime, within the meaning of the Fifth Amendment of the Constitution; and that the District Court, in holding the petitioner to answer for such a crime, and sentencing him to such imprisonment, without indictment or presentment by a grand jury, exceeded its jurisdiction, and he is therefore entitled to be discharged.
Writ of habeas corpus to issue.
A similar decision was made April 13, 1885, in UNITED STATES v. PETIT, submitted by Mr. Solicitor-General without argument April 7, 1885, on a certificate of division from the Circuit Court of the United States for the Eastern District of Missouri.
This was an information on Rev. Stat. § 5457, for the offence of passing a counterfeit half dollar, punishable by fine of not more than $5,000 and imprisonment at hard labor not more than ten years. The Circuit Judge and the District Judge certified that upon the determination of a plea to the jurisdiction they were opposed in opinion, "the question being whether the United *430 States could proceed by information instead of indictment to try a defendant charged under section 5457 of the Revised Statutes with the violation thereof; that is to say, whether the offences declared in said section are infamous crimes to be prosecuted solely through indictment pursuant to Article V of the amendments to the Constitution of the United States." 11 Fed. Rep. 58.
MR. CHIEF JUSTICE WAITE delivered the opinion of the court.
The first question certified in this case is answered in the negative, and the second in the affirmative, on the authority of Ex parte Wilson, decided at the present term. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/88144/ | 76 U.S. 125 (____)
9 Wall. 125
NORRIS
v.
JACKSON.
Supreme Court of United States.
*126 *127 Mr. A.F. Miller, for the plaintiff.
Mr. S.W. Fuller, contra.
Mr. Justice MILLER delivered the opinion of the court.
The first thing to be observed in the enactment made by the 4th section of the act of 3d March, 1865, allowing parties to submit issues of fact in civil cases to be tried and determined by the court, is that it provides for two kinds of findings in regard to the facts, to wit, general and special. This is in perfect analogy to the findings by a jury, for which the court is in such cases substituted by the consent of the parties. In other words, the court finds a general verdict on all the issues for plaintiff or defendant, or it finds a special verdict.
This special finding has often been considered and described by this court. It is not a mere report of the evidence, but a statement of the ultimate facts on which the law of the case must determine the rights of the parties; a finding of the propositions of fact which the evidence establishes, and not the evidence on which those ultimate facts are supposed to rest.[*]
The next thing to be observed is, that whether the finding be general or special, it shall have the same effect as the verdict of a jury; that is to say, it is conclusive as to the facts so found. In the case of a general verdict, which includes or may include, as it generally does, mixed questions of law and fact, it concludes both, except so far as they may be saved by some exception which the party has taken to the ruling of the court on the law.
In the case of a special verdict, the question is presented *128 as it would be if tried by a jury, whether the facts thus found require a judgment for plaintiff or defendant; and this being matter of law, the ruling of the court on it can be reviewed in this court on that record. If there were such special verdict here, we could examine its sufficiency to sustain the judgment. But there is none. The bill of exceptions, while professing to detail all the evidence, is no special finding of the facts.
The judgment of the court, then, must be affirmed, unless the bill of exceptions presents some erroneous ruling of the court in the progress of the trial.
The only ruling in the progress of the trial to which exception was taken by plaintiff, was to the refusal of the court to permit him to prove that Gitchell, the landlord of defendant, had promised to pay the judgment under which the land was sold to plaintiff.
We do not see that this was a matter of which plaintiff, a volunteer purchaser, had any right to complain. It could not extend the lien of the judgment beyond the time fixed by law, which seems to be the purpose for which it was offered.
We have taken some pains to comment on the mode in which cases tried by the court, which are properly triable by a jury, may be reviewed here. Attention was called to the statute of 1865, in the case of Insurance Co. v. Tweed,[*] and we condense here the results of an examination of that statute.
1. If the verdict be a general verdict, only such rulings of the court, in the progress of the trial, can be reviewed as are presented by bill of exceptions, or as may arise on the pleadings.
2. In such cases, a bill of exceptions cannot be used to bring up the whole testimony for review any more than in a trial by jury.
3. That if the parties desire a review of the law involved in the case, they must either get the court to find a special verdict, which raises the legal propositions, or they must *129 present to the court their propositions of law, and require the court to rule on them.
4. That objection to the admission or exclusion of evidence, or to such ruling on the propositions of law as the party may ask, must appear by bill of exceptions.
As the only ruling of the court in this case that we can examine seems to have been correct, the judgment is
AFFIRMED.
NOTES
[*] Burr v. Des Moines Co., 1 Wallace, 99; Graham v. Bayne, 18 Howard, 62.
[*] 7 Wallace, 44. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1564157/ | 75 F.2d 1000 (1935)
In re COLLINS.
Patent Appeal No. 3451.
Court of Customs and Patent Appeals.
March 25, 1935.
Albert T. St. Clair, for appellant.
T. A. Hostetler, of Washington, D. C. (Howard S. Miller, of Washington, D. C., of counsel), for Commissioner of Patents.
Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
BLAND, Associate Judge.
This is an appeal from the decision of the Board of Appeals of the United States Patent Office, affirming that of the Examiner in rejecting claims 32 to 55, inclusive, of an application for patent relating to alkyd type resins. All the claims in the application are product claims except process claims 42, 43, 44, 50, and 51. Claims 40, 41, 45, 46, 54, and 55 contain certain modifications not found in the other claims and, as was evidently true before the Board, appellant has not argued with much insistence that the rejection of the same was erroneous. Claims 32, 47, 50, and 55 are illustrative and follow:
"32. An alkyd type resin formed by the combination and condensation of a mixture containing an organic polybasic acid, glycerine, ethylene glycol, and di-ethylene glycol.
"47. An alkyd type resin formed by the combination and condensation of a mixture containing phthalic anhydride, glycerine, ethylene glycol and di-ethylene glycol, and less than 50 per cent of a fatty acid modifier.
"50. The process of producing the herein described resinous product, which comprises heating a mixture containing an organic polybasic acid, a polyhydric alcohol, ethylene glycol, a poly-ethylene glycol and a fatty acid.
"55. An alkyd type resin formed by the combination and condensation of a mixture containing phthalic anhydride, ethylene glycol, glycerine in an amount less than that of the ethylene glycol, and a fatty acid."
These claims were copied by appellant from the patent to Pieper, No. 1847783, of March 1, 1932, for the purpose of interference. The claims were all rejected upon the ground of want of disclosure of the subject-matter in the application as filed. The Board, in considerable detail, which we need not repeat here, has copied from the Pieper specification his teachings which fully disclosed the subject-matter of the involved claims, and we think has pointed out, as also did the Examiner, the particulars in which appellant's disclosure is deficient.
*1001 The appellant in this court quotes the following from his specification, "By the term `polyhydric alcohol-polybasic acid resin', as used herein, I mean the resinous condensation product resulting from the interaction of one or more polyhydric alcohols and one or more polybasic acids, with or without one or more modifying ingredients. * * * Although the above examples are limited to the use of glycerol and ethylene glycol as the polyhydric alcohol, phthalic anhydride, succinic acid and maleic acid as the polybasic acids, and linseed oil acids, Chinawood oil acids, castor oil acids and rosin as the modifying ingredients, I desire to have it understood that the invention is applicable generally to the other members of these classes, such as polyethylene glycol, pentaerythrite, citric, fumaric, adipic, butyric, oleic and stearic acids, cocoanut oil acids and perilla oil acids, and to all synthetic resins falling within the above definition of modified polyhydric alcohol-polybasic acid resins, * * *" and relies upon this, together with his six examples, which are set out in the specification, as amounting to a disclosure sufficient to support the claims at bar.
It will be noticed that claim 32, like most of the other claims, calls for a definite combination and condensation of a mixture of certain definitely named materials. For instance, said claim 32 calls for a combination with an organic polybasic acid of three definitely named materials glycerine, ethylene, glycol and di-ethylene glycol. None of the examples given sets out a combination of two or more alcohols. Appellant argues here that he has broadly covered this combination of elements by his above-quoted statements in his specification.
The decision of the Examiner and that of the Board rejecting the claims are based chiefly upon the proposition that one cannot support his specific claims of definite mixtures of definite materials upon a disclosure which teaches the use in no particular quantities or of no definitely named ingredient by broadly naming the group in which the claimed ingredients may be found. The Solicitor for the Patent Office illustrates appellant's position as being comparable to that of an applicant for mechanical patent who would disclose a list of mechanical elements as gears, levers, cams, bolts, etc., and state that they could be combined in combinations of twos, threes, fours, etc., as desired and then argue that the skilled mechanic could make the combination, and that the alleged inventor who first mentioned that those elements could be combined in the manner stated should be regarded as the first inventor.
On this phase of the case, the Examiner made the following pertinent statement:
"Counsel argues that in view of the language quoted above applicant originally intended to cover resins in which more than one polyhydric alcohol was used, and that applicant is unquestionably entitled to a claim which calls for the use of the specific alcohols, glycerol, ethylene glycol and polyethylene glycol. However, the evidence of such intention was lacking in the case as filed for neither in the objects of invention nor in the original claims is there found any reference to the use of mixtures of polyhydric alcohols. At the most, the specification treats the various alcohols mentioned in the portions quoted as equivalents and that any one of them may be substituted for those specifically mentioned in the examples. Moreover, if counsel's argument be carried to its logical conclusion, applicant would also be entitled to claim resins in which more than one polybasic acid was used with a single polyhydric alcohol or with mixtures of polyhydric alcohols, and also various combinations and permutations of these ingredients. To permit an applicant to lay claim to such specific products on the basis of an indefinite general statement would appear to be flying in the face of that portion of the Statute which requires an applicant to `set forth the precise invention for which a patent is solicited, and explain the principle thereof and the best mode in which the applicant has contemplated applying that principle.' Applicant's specification fails to meet this statutory requirement; and, as stated by the Court of Appeals of the District of Columbia in Lindley v. Shepherd (1928) 58 Ohio App. D. C. 31, 24 F.(2d) 606, `it is not enough that he (the applicant) may have had a conception of the invention he seeks to appropriate. His application must disclose it.'"
And with reference to certain of the claims stated:
"Obviously, applicant neither discloses nor even suggests the specific ratio of the ethylene glycol to the other polyhydric alcohols set forth in claims 45, 46, 54 and 55. No real contention has been made by counsel as to applicant's right to make these claims. Clearly applicant's specification lacks any basis for this specific invention, for even a broad general statement is no warrant for specific claims particularly in *1002 view of the fact that the mixture of alcohols in the ratios mentioned yield special and peculiar results."
The Board of Appeals, speaking of appellant's specification and contentions, said:
"So far as we can see, the specification treats the various alcohols mentioned as equivalents, that any one of them may be substituted for those specifically mentioned in the examples. The patentee on the other hand, has selected certain alcohols to combine and for definite results which he sets forth clearly in his specification. We do not feel that appellant is therefore entitled to spread the scope of his alleged invention to a degree not clearly indicated in his original disclosure and where improved results are obtained by certain selections of the ingredients, not taught by him in his specification. As the Examiner states, if we should agree with appellant's contention, applicant would be entitled to claim resins in which more than one polybasic acid is used with a single polyhydric alcohol or with mixtures of polyhydric alcohols and also various combinations and permutations of these ingredients. Obviously, in such situation any alleged invention would not be properly presented. While it is recognized that appellant should not be called on to indicate all the various combinations of the ingredients coming within the range of his invention, yet where the question of equivalency does not arise, it seems necessary that the advantages of selected combinations of the ingredients be taught in order that the scope of the invention be clearly defined."
We are in accord with the views expressed by the Board. Appellant, in order to be entitled to make the specific claims at bar, may not rely upon his disclosure which does not point out his specific invention with more particularity than is shown in the above matter quoted from his specification. New and useful results, according to the inventor Pieper and the Patent Office tribunals, resulted from the particular combinations made by Pieper, which combinations were of ingredients selected from the broad field referred to by appellant. Appellant, under the circumstances of this case, cannot pre-empt the entire field of useful inventions such as were claimed by Pieper by broadly teaching that useful results may be obtained by mixtures and combinations of a broad general group of materials without specifically naming such materials or by teaching the order of the combination, or the quantity of ingredients used, or in some other manner pointing out his invention as is required by statute "in such full, clear, concise, and exact terms as to enable any person skilled in the art or science to which it appertains, or with which it is most nearly connected, to make, construct, compound, and use the same." Rev. St. § 4888, section 33, title 35, U. S. C., 35 USCA § 33.
On this phase of the case we think In re Mraz, 36 Ohio App. D. C. 435, is particularly pertinent. There the applicant's original application called for a "composition consisting of gelatin, glycerin, and an oxygenated solution." (Italics ours.) The claims were originally rejected on the ground that the applicant failed to give any example of an oxygenated solution. He then sought to amend his application by naming one oxygenated solution bone meal. The court held that he had not originally disclosed bone meal and that his amendment was new material, and said:
"* * * We agree with the Board of Examiners-in-Chief that `the expression "oxygenated solution," used in the case originally, covers something entirely different from bone meal, and even if it were held to generically include the latter, there is no authority for allowing an applicant to include and claim a specific thing not originally described, merely because it comes within the scope of the genus before disclosed.'
"We are familiar with the rule of law urged by appellant that, where expressions used are ambiguous, and the validity of a claim is doubtful, a construction which will sustain the claim, rather than one which destroys it, should be indulged by the court. But in all such cases there must be something in the original application to suggest the claims set out in the amendment. It must not be new matter, nor an enlargement of the original specification and claims. * * *"
Claims 40, 41, 45, 46, 54, and 55 contain limitations such as "and ethylene glycol in an amount greater than that of either the glycerine or the poly-ethylene glycol" and "glycerine in an amount less than that of the ethylene glycol," and it is not very seriously contended by appellant in this court that his disclosure forms a sufficient basis for the allowance of such claims. Claim 47 has the limitation "and less than 50 per cent of a fatty acid modifier." Obviously, the invention in these claims rests in the particular limitations placed in them, and this fact, we think, illustrates the fallacy of the contention that appellant's broad and indefinite *1003 disclosure was for the same invention which these definite claims call for.
Appellant, after the Board's decision, filed an extended petition for rehearing in which he complained there, as he complains here, that the Board's decision would require an inventor to set out examples of every mixture which fell within the scope of his broad invention and that would entail such work, both on the part of the inventor and the Patent Office tribunals, as to bring about a result not contemplated by the patent laws and a practice which should be regarded as very dangerous. It is pointed out by the applicant that there are many instances in which an inventor may designate as one of the ingredients of his combination a group, any members of which are equivalents, and that if the decision of the Board is approved, such a practice cannot be resorted to in the future. Appellant also urges that if his application had resulted in a patent and Pieper was a pending applicant before the Patent Office, the office would reject Pieper on applicant's patent, and argues from that premise that the applicant has disclosed what Pieper has disclosed and claimed.
To the first contention the Board made the following reply:
"Appellant also urges that if it be necessary to have specific examples to warrant the making of a claim calling for specific elements when several examples have been given with the broad classes including these elements, that it would be necessary in chemical cases to present hundreds of examples in order to insure applicant's right to make specific claims on each combination they have disclosed. As stated previously, we have no intention and had none at the time of our decision of setting down any definite rule to be followed. We passed on the circumstances of the present application and held that the present disclosure is, in our opinion, insufficient basis to support the claims copied from the patent to Pieper."
As to the second contention, the Board replied:
"This reasoning seems fallacious to us inasmuch as in an interference between two parties, they must claim substantially the same patentable subject matter. On the other hand, in rejecting an application on a patent, it is not necessary that the patented disclosure or claims be the same as to subject matter as in the application. It is often the practice to reject on the ground that the differences in the disclosures of a patentee and an applicant indicate no special step forward in the art and therefore there is no patentable distinction presented and in this connection reference may be made to a second patent to support this position."
We are in accord with the decision of the Board in rejecting the claims for want of disclosure, and it is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1485176/ | 5 Md. App. 435 (1968)
248 A.2d 119
JAMES STREETER, JR.
v.
STATE OF MARYLAND.
No. 21, September Term, 1968.
Court of Special Appeals of Maryland.
Decided November 20, 1968.
The cause was argued before MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
Thomas J. Aversa, Jr., (G. Denmead Le Viness on the brief) for appellant.
Henry J. Frankel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State's Attorney for Baltimore City, and Hilary Caplan, Assistant State's Attorney for Baltimore City, on the brief, for appellee.
MORTON, J., delivered the opinion of the Court.
The appellant, James Streeter, Jr., was convicted in the Criminal *437 Court of Baltimore by Judge James A. Perrott, in a nonjury trial, of disorderly conduct, resisting arrest and of being a rogue and vagabond. He was given consecutive sentences of thirty days, one year and two years, respectively. His Motion for Judgment of Acquittal was granted to an indictment for murder.
The record indicates that the appellant was in a carry-out restaurant in Baltimore City about 1:50 A.M. on January 25, 1967. According to the assistant manager, he had consumed one sandwich and had ordered another but was without funds to pay for it. Since closing time was 2:00 A.M., the assistant manager asked him to leave and he refused. After several such requests went unheeded, he was told that unless he left, the police would be called. He refused to leave and, as an individual in the establishment left to get the police, the policeman on the beat walked in the door. The officer made several requests of the appellant to leave and instead of complying, he picked up a table knife and endeavored to slide it into his pocket. The officer promptly retrieved the knife, placed him under arrest and took him out of the shop. The assistant manager testified that he observed them traverse a city block during which time the officer had the appellant by his belt and the appellant was continuously struggling to break away.
Another witness testified that he observed the appellant being taken to the "call box"; that he was struggling to get away; that when they reached the call box he noticed the officer "falling backward on the pavement." He then noticed the appellant running down the street toward him and at the same time a passing taxi cab driver shouted, "Grab him," which the witness promptly did and, with the aid of another individual, kept the appellant subdued until police arrived.
The cab driver testified that he observed the appellant and the officer at the call box; saw the officer collapse while making the call; and saw the appellant running away.
A police officer testified that he arrived at the call box in response to a radio call; found the arresting officer lying on the sidewalk and immediately called an ambulance. The officer was taken to a hospital where he was pronounced dead as a result of a heart attack which, according to a representative of the *438 medical examiner's office, was due to natural causes and unrelated to the events involving the arrest of the appellant. The officer searched the appellant and found two pairs of scissors in his coat pocket. Another officer testified that he found a table knife on the sidewalk under the arresting officer's body.
The appellant, who admitted numerous prior convictions, testified that at the time of his arrest he "was drunk"; that he remembered being arrested in the shop; that he remembered being at the call box when the officer collapsed and "I panicked and didn't know exactly what to do. I got scared; I didn't know what to do but run." He also testified that "each time I get in trouble I been drinking." He did not recollect taking the table knife.
In this appeal, the appellant contends that the evidence was legally insufficient to support his convictions. He argues (1) that "he was not acting in a disorderly manner": (2) that "he does not remember resisting" the arresting officer; (3) that the evidence failed to show that he had the knife concealed upon his person or was carrying it openly with intent to injure any person. In our opinion these arguments are without substance.
The appellant was convicted of violating Maryland Code, Art. 27, Sec. 123, which provides in part:
"Every person who shall be found drunk, or acting in a disorderly manner to the disturbance of the public peace * * * in any store during business hours, * * * shall be guilty of a misdemeanor * * *."
The applicability of this statute was before this Court in Bacheller v. State, 3 Md. App. 626 and McIntyre v. State, 1 Md. App. 586. In each instance we adopted the language of the Court of Appeals in Drew v. State, 224 Md. 186, where Judge Hammond (now Chief Judge), speaking for the Court, said (at p. 192):
"The gist of the crime of disorderly conduct under Sec. 123 of Art. 27, as it was in the cases of common law predecessor crimes, is the doing or saying, or both, of that which offends, disturbs, incites, or tends to incite, a number of people gathered in the same area. *439 3 Underhill, Criminal Evidence, Sec. 850 (5th Ed.), adopts as one definition of the crime the statement that it is conduct `of such a nature as to affect the peace and quiet of persons who may witness the same and who may be disturbed or provoked to resentment thereby.' Also, it has been held that failure to obey a policeman's command to move on when not to do so may endanger the public peace, amounts to disorderly conduct."
See also Cantwell v. Connecticut, 310 U.S. 308-309; 12 Am.Jur.2d, Breach of Peace, § 8.
Although the record does not reveal the exact number of people in the store at the time of the appellant's refusal to leave, it is clear that the assistant manager, one employee and another individual were on the premises in addition to the police officer. The conduct of the appellant, in our opinion, offended, disturbed or, at least, "tended to incite" the individuals then on the premises, particularly since he was apparently insisting upon being served food, although without funds, and it was closing time and the shop could not be closed until he departed. His conduct could have precipitated a melee had the assistant manager not exercised good judgment by seeking the aid of a police officer rather than resorting to self help. The conduct and demeanor of the appellant did not abate when the officer arrived. In fact it became more aggravated by his attempt to purloin the table knife. Under these circumstances, we think it is clear that the appellant was "acting in a disorderly manner to the disturbance of the public peace" within the meaning of the statute as it has been judicially interpreted.
Having found the arrest to have been lawful, it is apparent from the facts set forth above that there was ample evidence to support the appellant's conviction of resisting arrest. Carwell v. State, 2 Md. App. 45.
Likewise, there was legally sufficient evidence to support his conviction of violating Md. Code, Art. 27, Sec. 490, which provides in part as follows:
"If any person * * * shall have upon him any pistol, hanger, cutlass, bludgeon, or other offensive weapon, *440 also at places and under circumstances from which may be presumed an intent feloniously to assault any person * * * such person shall be deemed a rogue and vagabond * * *."
The trial judge in announcing his verdict of guilty on the rogue and vagabond count of the indictment stated:
"After having heard all of the evidence in this case, I am firmly convinced that you took that knife for one purpose and one purpose alone, that was to inflict injury upon someone."
Under the facts and circumstances present in this case we agree with the reasoning of the lower court and we cannot say that the judgment was clearly erroneous. Md. Rule 1086. Shipley v. State, 243 Md. 262, 270.
Judgments affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2186218/ | 10 Ill. App. 2d 565 (1956)
135 N.E.2d 504
Fannie G. Burkholder, Jesse W. Johnson, and George W. Gerdes, Individually and as Administrator, c.t.a. of Estate of Fannie G. Burkholder, Deceased, Plaintiffs-Appellants,
v.
Harry E. Burkholder, Arlene C. Danreiter, Individually and as Executrix of Will of Charles P. Danreiter, Deceased, Charles Le Roy Danreiter, Minor, Socony-Vacuum Oil Co., Inc., Louise A. Connor et al., Defendants-Appellees.
Gen. No. 10,897.
Illinois Appellate Court Second District.
June 23, 1956.
Rehearing denied July 16, 1956.
Released for publication July 17, 1956.
Jesse W. Johnson, pro se, plaintiff-appellant.
Ward & Ward, for George *566 W. Gerdes, plaintiff-appellant.
Jacob Cantlin and Samuel Rubin, for Harry E. Burkholder, appellee.
(Abstract of Decision.)
Opinion by JUSTICE CROW.
Reversed and remanded, in part, with directions, and affirmed, in all other respects.
Not to be published in full. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625270/ | 15 So. 3d 582 (2009)
WILLIS
v.
ADVANCED COATINGS, INC.
No. SC09-1059.
Supreme Court of Florida.
July 22, 2009.
Decision without published opinion Review dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625282/ | 464 So. 2d 649 (1985)
Margaret R. BERGER, Appellant,
v.
C. William BERGER, Jr., Appellee.
No. 84-38.
District Court of Appeal of Florida, Fourth District.
March 6, 1985.
Charles A. Nugent, Jr., of Cone, Wagner, Nugent, Johnson, Hazouri & Roth, P.A., West Palm Beach, for appellant.
Ronald Sales of Law Office of Ronald Sales, P.A., West Palm Beach, for appellee.
LETTS, Judge.
The wife here appeals claiming that she did not receive an equitable distribution in the final judgment of divorce. We agree and reverse.
The marriage was of twenty-five years duration and two children were born, one of whom, though adult, remains partially dependent because of hemophilia. A major reason for the dissolution was the husband's extramarital affair. The wife has a degree in urban planning, but has not yet found a position in Pittsburgh where she now lives, because the job market is depressed.
Needless to say, the parties are in total disagreement as to the value of the assets. However, there can be no doubt that the husband has assets exceeding $1,250,000.00, after the distribution and his income was at least $177,000.00 for the year prior to the filing of the dissolution proceedings. By contrast the wife's income, including alimony, of $1,500.00 per month, does not exceed $28,000.00 per annum. As to her capital assets after distribution, they appear to total about $270,000.00. Any excess above that figure is largely allocated to non-income producing jewelry and furniture, the value of which gyrates wildly depending on which side is estimating its worth. It is admitted that practically all of the assets were accumulated during the marriage.
As to the latest cases out of the Supreme Court, we note Tronconi v. Tronconi, 466 So. 2d 203 (Fla. 1985), Walter v. Walter, 464 So. 2d 538 (Fla. 1985), and Marcoux v. Marcoux, 464 So. 2d 542 (Fla. 1985).[1] None of these were available to the *650 trial judge at the time of final dissolution. As we read the transcript of the case before us, there appears to be no doubt that the trial judge was of the opinion that the Fourth District's interpretation of Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980) in Tronconi v. Tronconi, 425 So. 2d 547 (Fla. 4th DCA 1982), was "quite contrary to the Florida Supreme Court." In addition, he opined that he did not have authority to make a settlement agreement. With the utmost of respect, the benefit of hindsight and because of the three new Supreme Court cases above cited, we must disagree with both of these pronouncements.
We concede that the Supreme Court's affirmance of our version of Tronconi is somewhat equivocal in that it disavows that Canakaris created a new vehicle for equitable distribution. However, it affirms the capability of a trial judge to make an equitable distribution by way of lump sum alimony and in effect permits the trial judge to make a property settlement agreement based on justification rather than need. Thus, we agree with our superiors in their assessment that whether Tronconi creates a new vehicle or an expanded one is but an exercise in semantics.
Accordingly, we find the trial judge not only misinterpreted the law, but also abused his discretion and we remand with the observation that it appears that the wife, under the facts of this case, did not receive an equitable distribution if it is true that she received only a small percentage of the income-producing assets and likewise only a small percentage of her husband's annual income in permanent periodic alimony. One or the other, or both, must be substantially increased. See Walter.[2]
We conclude by confessing ill case at not being more specific about what and how much more the wife should get. Canakaris teaches us that the distribution does not have to be equal and we, as indeed we must, agree with that. The only guide we can give the trial court, as to how little is too little, is to refer once more to Canakaris which sets forth that the standard of living enjoyed during the marriage should be considered. To us, it would also appear that the wife in the instant case, as was the wife in Canakaris, is passing from prosperity to relative misfortune. In the meantime the husband remains relatively prosperous, especially when one considers that the $18,000.00 a year in periodic alimony will only actually cost him half that sum because it is deductible.
REVERSED AND REMANDED.
DOWNEY and HURLEY, JJ., concur.
NOTES
[1] It is hard to capsule the net effect of Walter and Marcoux. However, one thing is clear: they collectively negate the nightmares that this author erroneously perceived in Conner v. Conner, 439 So. 2d 887 (Fla. 1983) and Kuvin v. Kuvin, 442 So. 2d 203 (Fla. 1983). See the dissent in this court's version of Marcoux v. Marcoux, 445 So. 2d 711 (Fla. 4th DCA 1984).
[2] Walter, citing Canakaris, includes the following passage:
While permanent periodic alimony is most commonly used to provide support, in limited circumstances its use may be appropriate to balance such inequities as might result from the allocation of income-generating properties acquired during the marriage. Canakaris, 382 So.2d at 1202. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625276/ | 500 N.W.2d 862 (1993)
SARGENT COUNTY BANK, Plaintiff and Appellee,
v.
John WENTWORTH and Beth R. Wentworth, Defendants and Appellants.
Civ. No. 920100.
Supreme Court of North Dakota.
May 17, 1993.
*864 W. Todd Haggart (argued), of Vogel, Brantner, Kelly, Knutson, Weir & Bye, Ltd., Fargo, for plaintiff and appellee. Appearance by Harlan Klefstad, President of Sargent County Bank.
Robert J. Snyder (argued) and James J. Coles (appearance), of Wheeler Wolf, Bismarck, for defendants and appellants. Appearances by John and Beth Wentworth.
MESCHKE, Justice.
John and Beth R. Wentworth appeal from a judgment awarding Sargent County Bank a deficiency judgment of nearly $216,000 against them and dismissing their counterclaims against the Bank. We reverse and remand for a new trial before a different trial judge.
Resolution of this case requires a protracted recitation of the background. The Wentworths operated a large farm and ranch in Sargent County. Since 1968, the Wentworths did business with the Bank, and after 1970, dealt primarily with its loan officer and vice president, D. Dean Rockswold. During the 1980s, the Wentworths received numerous loans[1] from the Bank, *865 which were secured by four security agreements.[2]
In February 1984, the Bank's statutory lending limit was $225,000 per customer. As of March 6, 1984, the Wentworths owed the Bank a total of $225,000 in chattel loans based on a $200,000 promissory note dated December 5, 1983, and on a $25,000 promissory note dated February 24, 1984. The accrued interest on these two notes totaled $6,910.94. Rockswold learned of a Farmers Home Administration [FmHA] loan guarantee program and suggested a guarantee to the Wentworths. Because the amount guaranteed by FmHA would not count toward the Bank's per customer lending limit, the Bank could continue its financial assistance to the Wentworths. According to the Bank, this was the first time Rockswold had applied for a FmHA guarantee. As part of the application process, the Bank certified that the guarantee was necessary for the continuation of a viable farming or ranching operation. At that time, the Wentworths had an equity cushion of more than $60,000 between their debt and the value of their collateral.
On March 6, 1984, John Wentworth signed a promissory note for $225,000, representing the same debts covered by the December 1983 and February 1984 notes. FmHA soon guaranteed 90 percent of this note. The note designated a variable interest rate and was payable in seven annual installments of $52,476.38 each, with the first installment due on March 6, 1985. As primary security to FmHA for the loan guarantee, the Bank designated 200 of the Wentworths' stock cows and six bulls valued at $120,000, and farm equipment valued at $212,500. According to the Bank, this was the security intended by the Wentworths, the Bank, and FmHA to apply to the March 1984 note.
The December 1983 and February 1984 notes were not stamped "renewed" at that time, the Bank explained, because the Wentworths were unable to pay the $6,910.94 in accrued interest at the time. Also, the Bank claimed that it decided not to enter the March 1984 note into its books because the Wentworths had not paid the interest owed and because the computerized accounting service used by the Bank at the time was unable to accept a variable rate note involving multiple annual installment payments. As a result, the Bank apparently kept track of the interest accrual and payments made on the $225,000 debt based on the December 1983 and February 1984 notes, which the Bank continued on its books.
In early December 1984, the Wentworths sold 177 calves for $43,801.50. These proceeds were turned over to the Bank on December 17, 1984, to be applied toward the March 6, 1985 annual payment due on the FmHA guaranteed note. The Bank, however, decided instead to apply the proceeds to the interest due on the December 1983 and February 1984 notes, without informing either the Wentworths or FmHA, and applied only the balance to the principal owing on the $225,000 debt. On December 17, 1984, John Wentworth signed a single-maturity, 15-month note in the principal amount of $208,177.37, reflecting the amount of the principal payment made on the $225,000 debt. On that date, the Bank finally marked the December 1983 and February 1984 notes "renewed."
The December 17, 1984 note recited "FHA 90% Guaranteed Loan on livestock *866 and equipment" and set forth a variable interest rate, which was listed as 14 percent as of that date, the same rate then in effect under the March 1984 note. According to the Bank, the December 1984 note was placed on the Bank's books and was thereafter used to keep track of interest accrual and payments on the FmHA guaranteed loan. At that time, John Wentworth advised the Bank that he expected to have no additional income before March 6, 1985, to apply toward the installment payment of $52,476.38 due on that date for the March 1984 note. Although the December 1984 note was a single-maturity, 15-month note, the Bank contended that the Wentworths were told that, absent a default, only an installment payment of $52,476.38, as called for by the March 1984 note, would be due on March 6, 1986.
No additional payment was made by the Wentworths on the installment due March 6, 1985, leaving a total shortfall of $8,674.88 due on that installment. The Bank, the Wentworths, and FmHA agreed to defer collection of the balance of the installment, and no foreclosure or collection action was undertaken by the Bank or encouraged by FmHA.
Between the time the Wentworths and the Bank executed a security agreement on March 27, 1985, granting the Bank a security interest in the Wentworths' 1985 crops, and December 16, 1985, the Bank made operating loans to the Wentworths totaling $148,700. By December 16, 1985, the Wentworths had repaid $42,300 on the 1985 operating loans. The unpaid balance of $106,400 was renewed in a new note for that amount. This note was due March 6, 1986. Although the Wentworths previously had some carry-over operating debt from year to year, the operating debt carry-over at the end of 1985 was much larger than it had ever been because of losses caused by hail damage and conditions making harvest impossible.
The Wentworths and the Bank did not establish an operating budget for the 1986 crop year because, the Bank claims, the Wentworths were unable to demonstrate how they would be able to repay their operating debt from 1985 or meet their other financial obligations. The Bank, however, loaned the Wentworths funds for living expenses and for planting and harvesting a crop.
During March 1985 and March 1986, the Wentworths sold cull cows and turned the proceeds over to the Bank. These cull cows were part of the security for the FmHA guarantee, and the Bank applied the proceeds directly to the principal on, or to the "back end" of, the FmHA guaranteed loan. The Bank claimed that this action was in accordance with FmHA practices and procedures for handling the proceeds from the sale of security. These proceeds were not counted toward the annual installment payments called for by the March 1984 note.
By April 20, 1986, the Wentworths' past due operating debt to the Bank was $143,095.03. In addition, the Wentworths owed a past due March 6, 1986 installment payment of $52,476.38 on the FmHA guaranteed loan. During April 1986, the Wentworths sold their 1985 calf crop for $52,128.48. They also received $7,596.91 for the sale of some grain. John Wentworth turned these proceeds over to the Bank on April 21, 1986, and requested that the $52,128.48 in calf sale proceeds be applied by the Bank to the delinquent installment payment due on the FmHA guaranteed loan.
Instead, Rockswold told Wentworth that the Bank would apply the calf proceeds entirely to the past due operating debt. According to the Bank, because the operating loans had enabled the Wentworths to produce the calf crop, and because the calves were considered "normal income security" under FmHA policy and procedures, the FmHA did not object to the Bank applying the calf sale proceeds to payment of the loans for operating expenses, ahead of the scheduled payment on the guaranteed loan. The Wentworths did not make the March 6, 1986 installment payment on the FmHA guaranteed loan, and they made no other payments on that debt.
In May 1986, the Wentworths and the Bank began working with a farm counselor *867 who prepared a proposal for restructuring all of the Wentworths' debts. In August 1986, FmHA rejected the proposal for restructuring, claiming that the anticipated crop yields were unrealistic and that the plan did not show a reasonable likelihood that the Wentworths' debts to the Bank could ever be repaid. FmHA apparently believed that the Wentworths would have a substantial negative cash flow for the year, and that the equity in the farm's current and intermediate assets had deteriorated steadily from 1982 through 1986, leaving virtually no equity in the assets that secured the debt.
After FmHA rejected the restructuring proposal, the Bank made three additional loans to the Wentworths, totaling over $19,000, and released $6,324.59 in government payments to them, principally for living and harvesting expenses. The Wentworths met with Bank officers on November 6, 1986.
The Bank contends that, at this meeting, the Wentworths agreed to sell their cow herd in December 1986 because the cattle were not profitable. The Wentworths did not turn over the sale proceeds of $55,367.72 to the Bank.[3] The Wentworths did not make the March 6, 1987 installment payment of $52,476.38 due on the FmHA guaranteed note.
In May 1987, FmHA approved the Bank's plan for liquidation of the Wentworths' collateral. According to the Bank, FmHA considered the Bank "laggard" in taking action. The Bank then sued the Wentworths to foreclose its security interest in the farm equipment, livestock, crops, and proceeds securing a series of 15 promissory notes in default, and sought a deficiency judgment to the extent that the debt exceeded the value of the collateral. The Wentworths answered, alleging, among other things, that the Bank had misapplied their payments to the operating loans rather than to the FmHA guaranteed loan, and that, by doing so, the Bank had artificially created the FmHA defaults.
The Bank also sought an order for pre-judgment possession of the collateral, under NDCC Chapter 32-07. In seeking this order, the Bank's attorney, Jon R. Brakke, filed a factual affidavit in which he personally attested to the validity of the 15 promissory notes evidencing the indebtedness of the Wentworths to the Bank. Although the December 1984 note was listed in the affidavit, no mention was made of the March 1984 note.
A hearing was held on June 1, 1987, before Judge Robert L. Eckert, to determine whether the Bank was entitled to immediate possession of the collateral. On July 14, 1987, the trial court issued an order granting the Bank immediate possession of various checks for crop and livestock proceeds and government payments as well as the Wentworths' remaining livestock and farm equipment, pending a final determination of the merits of the foreclosure action. The Wentworths appealed.
We dismissed the appeal for lack of appealability without a NDRCivP 54(b) order. Sargent County Bank v. Wentworth, 434 N.W.2d 562 (N.D.1989). Due to delays from successive bankruptcy filings by the Wentworths, the Bank did not obtain or sell all of the collateral until late 1988. In the meantime, FmHA entered into a settlement agreement with the Bank concerning the guarantee.
In early 1989, after extensive discovery, the Wentworths moved for an order allowing them to amend their pleadings to assert a counterclaim against the Bank alleging actual and constructive fraud, deceit, conversion, and fraud on the court. The Wentworths sought compensatory and punitive damages and demanded a jury trial. The trial court allowed the amendment, except for the allegation of fraud on the court. The trial court reasoned that the allegation of fraud on the court
is a non-compulsory counterclaim that could best be handled in a separate action. Further, that amendment alleges certain acts on the part of Mr. Brakke which, if granted, might require him to *868 testify and thus bar him from proceeding further in this action. As this case is now over two years of age, it appears to me that to allow such an amendment which would cause further delay would be an abuse of discretion.
The trial court deferred ruling on the demand for jury trial until the pretrial conference.
In December 1989, the Bank moved to amend its complaint to include the March 1984 note as an alternate basis for the Wentworths' indebtedness. The trial court allowed the Bank to amend its complaint to allege that the Wentworths were indebted to the Bank in the amount of $192,764.10, plus accrued interest of $63,105.85 "pursuant to a promissory note dated December 17, 1984, in the original amount of $208,177.37 or a variable rate installment promissory note dated March 6, 1984, in the original amount of $225,000, or a combination of both the December 17, 1984 and March 6, 1984 notes."
In May 1990, the Wentworths moved to disqualify the Bank's counsel and the entire Vogel, Brantner, Kelly, Knutson, Weir & Bye, Ltd., law firm from representing the Bank because they intended to call attorney Brakke as a witness on their behalf. The Wentworths argued that continued representation of the Bank by the law firm would result in a conflict of interest requiring disqualification under the North Dakota Rules of Professional Conduct. By this time, another member of the same law firm, W. Todd Haggart, was handling the case for the Bank. The trial court denied the motion, reasoning:
I have reviewed the briefs and affidavits submitted in support of and in opposition to the motion and have been unable to detect, at this point, any conflict between the affidavit of Mr. Brakke and the testimony of any of the Bank's witnesses which is in such conflict that a disqualification of the Bank's attorneys would be required. I also consider the fact that this litigation has been going on for a long period of time and find that to require the Bank to seek new attorneys at this late date would undoubtedly work a financial hardship on it. The court takes judicial notice of the fact that its file on this case now weighs about fifty pounds.
Further, the attorneys for the Bank are now aware of the claims of the Wentworths so if subsequent discovery reveals that there may be a substantial conflict between the testimony of Mr. Brakke and the employees of the Bank, or if there is some other valid reason for disqualification, the attorneys for the Bank should reconsider their position.
The case was then assigned for trial to Judge Gordon O. Hoberg. The Bank filed a demand for change of judge, and Judge Eckert was reassigned to the case. The Wentworths' subsequent demand for change of judge against Judge Eckert was denied by Judge John T. Paulson.
At the pretrial conference in September 1991, Judge Eckert ruled that the Wentworths were not entitled to a jury trial, reasoning that their counterclaims were actually defenses and were not true counterclaims on independent causes of action. This court summarily denied the Wentworths' petition for a writ of mandamus to compel a jury trial.
One week before trial, the Wentworths moved again to disqualify Judge Eckert, this time asserting that he had "prejudged the merits of [their] counterclaims." The motion was denied.
At a trial spanning seven and one-half days of testimony, attorney Haggart represented the Bank. Parts of attorney Brakke's deposition testimony were read into the record by the Wentworths' counsel in an attempt to impeach Bank officials. In March 1992, the trial court issued lengthy and detailed findings and conclusions that essentially adopted the Bank's explanations and theory of the case. The court awarded the Bank a deficiency judgment of $216,000 against the Wentworths and dismissed their counterclaims.
The trial court ruled that the March 1984 note and 14 other notes were valid and enforceable. The court held, however, that the December 1984 note was unenforceable. The court recognized that it was "improper for the Bank to hold concurrent or *869 parallel notes representing the same debt," but reasoned that the Bank did not sell or transfer any of the notes to third parties, did not attempt to collect the debt more than once, and did not carry more indebtedness on its books than was actually owed by the Wentworths. The trial court found that the Bank "had no intent to harm or in any way injure the Wentworths by holding concurrent or parallel notes representing the same debt and did not gain any advantage over the Wentworths by doing so." The court also found that the Bank's holding concurrent notes "did not cause any loss or damage to the Wentworths."
The court found that the Bank did not misapply any of the monies paid by the Wentworths to the Bank. On the proceeds from the sale of 1985 calves, the trial court further reasoned that, even if those proceeds had been applied to the FmHA guaranteed debt, the note would nevertheless have been in default because the payment would have been minimally short of the installment amount. Also, the court reasoned that because the Wentworths would then have been unable to pay the operating loans when they came due, another ground existed for default under the terms of the note. The court found no material breach by the Bank of any of the agreements made contemporaneously with the FmHA loan guarantee, and that, even if there had been a breach, the only party damaged was FmHA, which was satisfied when it reached a settlement agreement with the Bank. The court found that the Wentworths had failed to prove that the Bank defrauded or deceived them, or converted any of their property. The court also found that the Bank's sale of the collateral "was commercially reasonable in all respects." The Wentworths appealed.
After they appealed, the Wentworths learned that Judge Eckert had been represented by Kermit Edward Bye, a member of the Bank's law firm, at the time when the judge heard and granted the Bank's motion for prejudgment possession of the collateral in June and July 1987. Attorney Bye represented Judge Eckert, who was one of 20 named defendants in Williams v. State, 405 N.W.2d 615 (N.D.1987). Attorney Brakke was also named as a defendant in that case. Although Williams was decided by this court on May 4, 1987, prior to the initial proceedings in this case, the Wentworths submit documentation that attorney Bye's representation of Judge Eckert in those proceedings continued at least through September 1987.
On appeal, the Wentworths assert that reversal of the judgment is required because: (1) the trial court erred in refusing to order that the Vogel, Brantner, Kelly, Knutson, Weir & Bye, Ltd., law firm be disqualified from serving as the Bank's trial counsel; (2) the trial court erred in denying them a jury trial; (3) the trial court erred in concluding that the debt evidenced by the March 1984 note was not discharged by a fraudulent alteration under NDCC 41-03-44; (4) the trial court erred in failing to find the Bank guilty of fraud, deceit, and conversion; and (5) Judge Eckert erred in failing to disqualify himself from the case.
I
The Wentworths argue that the trial court erred in refusing to order that the entire Vogel, Brantner, Kelly, Knutson, Weir & Bye, Ltd., law firm be disqualified from serving as the Bank's trial counsel in this case. Under the circumstances, we cannot say that disqualification of the law firm was required.
When this action was commenced in May 1987, the Bank applied to the court and received an order for immediate possession based on an affidavit of the Bank's attorney, Brakke. In the affidavit, Brakke swore to the authenticity, based on his personal knowledge and belief, of the December 1984 note[4] that the trial court ultimately *870 determined was unenforceable. When the Wentworths' counsel learned of the existence of the March 1984 note, they notified the court that they would be calling Brakke as a witness at trial and moved to disqualify him and his law firm from continued representation of the Bank. The Wentworths alleged that Brakke would impeach the testimony of the Bank's witnesses regarding the promissory notes and be forced either to admit that he presented a false note to the court or to disavow any knowledge of the March 1984 note that the trial court ultimately concluded was the valid and enforceable note. According to the Wentworths, this situation created a substantial conflict of interest between Brakke and the Bank's officials requiring imputed disqualification of the entire law firm.
Rule 3.7 of the North Dakota Rules of Professional Conduct directs:
LAWYER AS WITNESS
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) The testimony relates to an uncontested issue;
(2) The testimony relates to the nature and value of legal services rendered in the case; or
(3) Disqualification of the lawyer would work substantial hardship on the client because of the distinctive value of the lawyer or the lawyer's firm as counsel in the particular case.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by a conflict of interest.
The comment to this rule explains the basis for disqualification when a conflict of interest exists:
Whether the combination of roles [of advocate and witness] involves improper conflict of interest with respect to the client is determined by the application of the rules concerning conflict of interest, most importantly, Rules 1.7, 1.8, and 1.9. For example, if there is likely to be substantial conflict between the testimony of the client and that of the lawyer or a member of the lawyer's firm, the representation is improper. The problem can arise whether the lawyer is called as a witness on behalf of the client or is called by the opposing party. Determining whether or not such a conflict exists is primarily the responsibility of the lawyer involved. See Comment to Rule 1.7. If a lawyer who is a member of a firm may not act as both advocate and witness by reason of conflict of interest, Rule 1.10 disqualifies the firm also.
Therefore, if the conflict rules alone would preclude the testifying lawyer from acting as both advocate and witness, then no one in the testifying lawyer's firm may serve as an advocate in the case. See Syscon Corp. v. United States, 10 Cl.Ct. 200, 202-203 (1986). In other words, if the rules on conflict of interest would preclude Brakke from acting as advocate and witness at the trial, it would likewise be improper for Haggart to serve as the Bank's trial counsel. See Geisler by Geisler v. Wyeth Laboratories, 716 F. Supp. 520, 525 (D.Kan.1989); C. Wolfram, Modern Legal Ethics § 7.6, at p. 395 (1986). Rule 1.10(a) of the North Dakota Rules of Professional Conduct says: "Lawyers associated in a firm may not knowingly represent a client *871 when any one of them practicing alone would be prohibited from doing so by these rules, ..."
A conflict of interest arises when an attorney's testimony would prejudicially contradict or undermine his client's factual assertions. See Lamborn v. Dittmer, 873 F.2d 522, 531 (2d Cir.1989); Sellers v. Superior Court, Maricopa County, 154 Ariz. 281, 742 P.2d 292, 299 (Ct.App.1987); Rule 1.7 of the North Dakota Rules of Professional Conduct.[5] Courts have held that when an attorney is to be called other than on behalf of his client, a motion for disqualification must be supported by a showing that the attorney will give evidence material to the determination of the issues being litigated, that the evidence is unobtainable elsewhere, and that the testimony is or may be prejudicial to the testifying attorney's client. Cottonwood Estates, Inc. v. Paradise Builders, Inc., 128 Ariz. 99, 624 P.2d 296, 302 (1981). See also ABA/BNA Lawyers' Manual on Professional Conduct 61:507 (1984), and cases collected therein.
We also recognize, however, that courts generally view motions to disqualify opposing counsel with extreme caution because disqualification can be used to gain a tactical advantage and to harass the opposing party. See Thompson v. Goetz, 455 N.W.2d 580, 587 (N.D.1990); Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 722 (7th Cir.1982). Thus, the showing of prejudice needed to disqualify opposing counsel is more stringent than when the attorney is testifying on behalf of his client because adverse parties may attempt to call opposing lawyers as witnesses simply to disqualify them. See Greater Rockford Energy & Technology v. Shell Oil Co., 777 F. Supp. 690, 693 (D.C.D.Ill.1991); Jones v. City of Chicago, 610 F. Supp. 350, 360 n. 3 (D.N.D.Ill.1984). The obvious dangers inherent in allowing a party to call adverse counsel as a witness and the importance of the right to have the counsel of one's choice, see Goetz, requires careful scrutiny of the facts before disqualification is compelled. Security General Life Ins. v. Superior Court, 149 Ariz. 332, 718 P.2d 985, 988 (1986). The trial court proceeded cautiously here, and properly so.
A trial court's decision on a disqualification motion will only be reversed for an abuse of discretion. Goetz. Under the circumstances of this case, we do not believe the trial court abused its discretion in refusing to disqualify Brakke's law firm from representing the Bank during trial.
Attorney Haggart represented the Bank during trial. Attorney Brakke did not appear at the trial, but parts of his deposition testimony were read into the record by the Wentworths' attorney. Brakke testified that he was not shown the March 1984 installment note when he commenced the action. Rockswold and another Bank officer, Steven D. McLaen, testified at one point that both the December 1984 note and the March 1984 note were evidence of the Wentworths' debt and were valid and enforceable. Brakke denied having made the decision as to which note to sue on. He testified that he worked with Rockswold in preparing to bring the action and that the file information he received from Rockswold did not include the March 1984 note. Rockswold testified that he did not meet or talk to Brakke about the commencement of the collection action. *872 McLaen testified, however, that he sent the notes and security agreements to Brakke for commencement of the action. The Wentworths also rely on inconsistent testimony by McLaen regarding whether he was aware of the March 1984 note when the action was commenced.
Brakke's attesting to the validity of the promissory notes created an awkward and confusing situation. But we believe the trial court correctly determined that the testimony was not "in such conflict that a disqualification of the Bank's attorneys would be required." Questions on the validity of the two notes directed to the Bank's officers called for findings and conclusions that were within the province of the trial court. Although discrepancies about which Bank officer sent the notes to Brakke to commence the suit had some impeachment value, it was not compelling considering that this lawsuit was almost five years old at the time of trial. Brakke's testimony on material facts was not so prejudicial to the Bank that imputed disqualification of the law firm was mandated, as a matter of law.
Moreover, the trial court did not allow the Wentworths to amend their complaint to assert an action for fraud on the court, concluding that this was not a compulsory counterclaim.[6] In doing so, the trial court envisioned the possibility that such a disqualification may well be required in a future trial of that action, and cautioned the Bank's attorneys accordingly. See Comment to Rule 3.7 (determining whether conflict exists is primarily the responsibility of lawyer involved).
Although the Wentworths argue that the trial court's failure to allow this amendment to their counterclaim was erroneous, we disagree when considered in conjunction with the motion to disqualify the Bank's attorneys. The trial court considered that this litigation had "been going on for a long period of time" and that to require the Bank to retain new attorneys at such a late date "would undoubtedly work a financial hardship on it." See Goetz, 455 N.W.2d at 588. In its decision to deny the demand for jury trial, the trial court noted that the fraud-on-the-court action "will be heard after the trial." While other dispositions might have been possible, the trial court resolved these problems in a practical, logical, and sensible fashion.
We find no abuse of discretion on this record and conclude that disqualification of Brakke's law firm was not required.
II
The Wentworths argue that the trial court erred in denying them a jury trial. We disagree.
Whether a party is entitled to a jury trial depends upon whether the case is an action at law or an action at equity. First Nat'l Bank and Trust v. Brakken, 468 N.W.2d 633, 635 (N.D.1991). There is no absolute right to a jury trial in an equitable action, id., although a trial court may submit, in its discretion, factual questions to an advisory jury. Lithun v. Grand Forks Public School Dist. No. 1, 307 N.W.2d 545, 549 n. 4 (N.D.1981); Dobervich v. Central Cass Public School Dist. No. 17, 283 N.W.2d 187, 190 (N.D.1979); Bolyea v. First Presbyterian Church of Wilton, N.D., 196 N.W.2d 149, 160 (N.D. *873 1972); NDRCivP 39(c). The foreclosure of a security interest in a farmer's livestock and equipment is an equitable action triable to the court without a jury. Production Credit Ass'n v. Rub, 475 N.W.2d 532, 537-538 (N.D.1991). In an equitable action, a party who raises legal defenses denominated as a counterclaim is not entitled to have a jury trial on those defenses. Adolph Rub Trust v. Rub, 474 N.W.2d 73, 75 (N.D.1991). We have ruled before, in Farm Credit Bank of St. Paul v. Rub, 481 N.W.2d 451, 458 (N.D.1992), that, even when a counterclaim seeks monetary damages, a party is not entitled to a jury trial if the damage claim is incidental to and dependent upon a primary claim for which a jury trial is not allowed.
The Wentworths sought $1,000,000 in damages for conversion, for constructive fraud, and for actual fraud and deceit. They also sought indemnification from the Bank in the event that they were required to pay FmHA the amount paid by FmHA to the Bank on the guarantee. The Wentworths also sought $1,000,000 in exemplary damages.
In their counterclaim for conversion, the Wentworths alleged that the Bank had misapplied payments to loans other than the FmHA guaranteed loan and that this action caused the default on the guaranteed loan, leading to the illegal seizure of their livestock and machinery. The counterclaims for constructive fraud, actual fraud, and deceit alleged that the Bank misapplied loan payments, that the Bank fraudulently induced them into executing the December 1984 note, and that the Bank falsely represented to FmHA that the guaranteed note was in default so that FmHA would authorize liquidation. These acts also allegedly resulted in the unlawful seizure of the Wentworths' livestock and machinery.
These counterclaims are not independent claims but are, in effect, legal defenses to the foreclosure action. Each counterclaim, if proven, would constitute a defense to the Bank's foreclosure action. Likewise, the indemnification claim is only incidental to the defenses against the debt because if the Wentworths successfully defended the Bank's claim, there would be no need for indemnification.
Although the Wentworths seek money damages in their counterclaims, these damages are merely incidental to the defenses and arise out of the seizure of collateral that took place as part of the Bank's main foreclosure action. See Brakken, 468 N.W.2d at 636; Production Credit Ass'n v. Rub, 475 N.W.2d at 538. The Wentworths' counterclaims were incidental to and dependent upon a primary claim that did not entitle them to a jury trial. Therefore, the Wentworths were not entitled to a jury trial in this case.
III
The Wentworths assert that the $225,000 debt evidenced by the March 1984 note must be discharged because it was fraudulently altered in violation of NDCC 41-03-44. However, there is evidence which, if believed, supports the trial court's contrary findings on this question.
A party's liability on an instrument is discharged if the holder's alteration of the instrument is both material and fraudulent. NDCC 41-03-44(2)(a) says:
As against any person other than a subsequent holder in due course:
a. Alteration by the holder which is both fraudulent and material discharges any party whose contract is thereby changed unless that party assents or is precluded from asserting the defense;...
A material alteration is defined in NDCC 41-03-44(1):
Any alteration of an instrument is material which changes the contract of any party thereto in any respect, including any such change in:
a. The number or relations of the parties;
b. An incomplete instrument, by completing it otherwise than as authorized; or
c. The writing as signed, by adding to it or by removing any part of it.
The question whether an instrument has been materially and fraudulently *874 altered is one of fact, governed by NDRCivP 52(a). First National Bank, Hettinger v. Robertson, 442 N.W.2d 430, 431 (N.D.1989). A finding of fact is clearly erroneous when there is no evidence to support it, or when, although there is some evidence to support it, the reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake has been made. Id.
The trial court found that the "Bank at no time made any material or other alteration of any negotiable instrument." The Wentworths assert that when Rockswold had John Wentworth execute the December 1984 single-payment note, this materially and fraudulently altered the terms of the March 1984 installment note. We are unable to accept this argument for two reasons.
First, there is no indication in the record that a negotiable instrument, see NDCC 41-03-02(1)(a) and 41-03-04, was physically altered in any manner. Compare Liberty State Bank v. Hemisphere, 98 Mich.App. 285, 296 N.W.2d 241, 243 (1980) (borrower's account ledger card, which bank altered, was not an instrument that, if materially and fraudulently altered, would discharge borrower's obligations). The cases relied on by the Wentworths, Robertson and Stevens v. Barnes, 43 N.D. 483, 175 N.W. 709 (1919), do not support the idea that this transaction was a physical alteration. In Robertson, after a note had been signed by two of three debtors, the bank inserted on the face of the note the dates of three security agreements that had been executed to secure various other promissory notes, all of which had previously been paid in full. Barnes did not construe the same statute and, in any event, the case involved a physical separation of an order and note. The two notes here were never part of the same document and were not executed at the same time.
Second, assuming that execution of the December 1984 note materially altered the March 1984 note for purposes of NDCC 41-03-44, no discharge resulted unless the alteration was fraudulent. For purposes of NDCC 41-03-44, fraud "`requir[es] a dishonest and deceitful purpose to acquire more than one was entitled to under the note as signed by the makers rather than only a misguided purpose.'" Robertson, 442 N.W.2d at 432 (quoting Thomas v. Osborn, 13 Wash.App. 371, 536 P.2d 8, 13 (1975)). Here, the trial court found that the Bank "at no time intended to deceive, mislead or defraud" the Wentworths by holding the two parallel notes. In the next section, we conclude that there is evidence that supports this finding, if believed.
On this record, we conclude that NDCC 41-03-44 did not discharge the Wentworths from their obligations under the March 1984 note.
IV
The Wentworths argue that the trial court erred in failing to find the Bank guilty of fraud, deceit, and conversion.
Fraud and deceit are treated as questions of fact, and the trial court's determination on those matters will not be set aside on appeal unless clearly erroneous. Brakken, 468 N.W.2d at 636. Likewise, whether conversion of another's property occurred is a question for the trier of fact. See Napoleon Livestock Auction, Inc. v. Rohrich, 406 N.W.2d 346, 351 (N.D.1987).
According to the Wentworths, the Bank engaged in an extensive course of fraud, conversion, and deceit designed to maximize its gain on the operating loans, and then to collect on the FmHA guaranteed note. They assert that the Bank's failure to mark the December 1983 note and the February 1984 note "renewed" when John Wentworth executed the March 1984 note was not only fraudulent, but a criminal act under NDCC 41-03-80.[7] The Wentworths assert *875 that fraud and deceit exist in this case because the Bank kept two sets of promissory notes for the same debt that was ultimately guaranteed by FmHA, and the "true debt contract," the March 1984 installment note, was "neither entered in the Bank's books in any fashion nor ever considered by [the] Bank as part of its contract with Wentworths." They argue that the December 1984 single-payment, 15-month note was executed "to perpetuate the Bank's `double set' of financial records which made it appear Wentworths had only short term debt obligations with the Bank." They further argue that the Bank made other fraudulent misrepresentations to FmHA and converted their payments by applying them to operating loans "to artificially create a default on the FmHA note, thus obtaining FmHA approval for the seizure and liquidation of the Wentworths' collateral." They argue that the Bank improperly arranged for a private sale of collateral by fraudulently representing to FmHA that the Wentworths were "militant farm radicals" and that a public auction would result in "trouble." All of these actions by the Bank, according to the Wentworths, constituted a grand scheme to defraud them of all that they owned.
Fraud is never presumed, but must be proved by evidence that is clear, satisfactory, and convincing. Buehner v. Hoeven, 228 N.W.2d 893, 903 (N.D.1975). However, inducement and reliance may be inferred when there is nondisclosure of a material fact. Adams v. Little Missouri Minerals Association, 143 N.W.2d 659, 683 (N.D.1966). While the Wentworths' allegations and theory of the case could support findings of fraud and deceit on the part of the Bank, the Bank presented evidence that dressed its actions in innocence and rebutted these allegations of fraud and deceit relied upon by the Wentworths.
The Bank explained that at the time the possibility of a FmHA loan guarantee was discussed in early 1984, the Wentworths owed principal of $225,000 plus accrued interest, while the value of the livestock and machinery collateral was estimated to be $290,000, leaving approximately $60,000 in equity between the debt and the value of the collateral. The Bank's lending limit per customer at the time was $225,000. The Bank contended that it did not seek the FmHA guarantee solely to improve its own position, but only to enable the Wentworths to borrow the money they needed to continue to operate their farm and ranch.
Rockswold contended that he had no experience with farm loan guarantees, and that this was one of the first guarantees handled by the Sargent County FmHA office. Bank officers explained that, when the March 1984 note was executed and the Wentworths were unable to pay the interest owed on the December 1983 and February 1984 notes, the Bank's computer accounting service could not handle the new variable-rate, multiple-maturity note, so the Bank did not put the March 1984 note on its books, but placed it in the back of its file. According to the Bank, once FmHA approved the guarantee, the Bank loaned operating money to the Wentworths.
Furthermore, the Bank alleged that nothing was concealed from the Wentworths because John Wentworth signed the notes. According to the Bank, on December 17, 1984, John knew that he owed principal, knew the interest rates of the earlier notes, and knew the amount of the $208,177.37 note that he signed on that date. One of *876 the Bank's experts testified that it was appropriate for the Bank to apply the calf sale proceeds to the interest and the remainder to the principal because the interest was owed and the underlying debt was the debt guaranteed. The Bank argued that the December 1984 note referred to the FmHA guarantee, and that Wentworth acknowledged that he was told by Rockswold that the March 1984 note did not fit into the Bank's computer and that the December 1984 note was for "in-house banking" purposes to track the money.
Rockswold testified that he intended to renew the loan until March 6, 1986, when he would expect another payment of $52,476.38, and that he did not expect to have the whole note come due on that date. According to Bank officers, a single-payment, 15-month note was used because that was how all of the Bank's term loans were handled at the time. The trial court's finding, that although the December 1984 note was a single-payment, 15-month note, the Bank and the Wentworths understood that an installment payment of only $52,476.38 would be due on March 6, 1986, is supported by the Bank's version of the facts.
Although the Bank initially sued in May 1987 to foreclose on the 15 promissory notes on its books, including the December 1984 note that the trial court concluded was unenforceable, the Bank argued that it would still have been entitled to immediate possession had it originally sued on the March 1984 note, because that note was also in default. The Wentworths had failed to pay the installment due on March 6, 1986, and their payment was applied to the outstanding operating loan. Even if the calf proceeds had been applied to the guaranteed note, that payment was minimally insufficient to meet the called-for installment, the Bank contended. According to the Bank, the resulting failure to pay the operating loan would then have caused a default under the terms of the guaranteed note because the default and acceleration clause in the March 1984 note declared:
The Borrower shall be in default upon the occurrence of any one or more of any of the following events: (1) the Borrower shall fail to pay, when due, any amount required hereunder, or any other indebtedness of the Borrower to the Lender o[r] any third parties; ...
Although the lender's agreement required that the Bank apply the proceeds from the sale of collateral in accordance with the lien priorities on which the guarantee was based, the Bank's FmHA expert testified that the calf proceeds could be applied to operating loans in accordance with the lien priorities. The local FmHA officer involved in this case also testified that calf income can ordinarily be applied to payment of loans for operating expenses even if there is a scheduled payment due on a guaranteed loan.[8]
*877 The Bank presented evidence which, if believed, tended to show that it did not create the default on the guaranteed note, but that the default occurred because the Wentworths did not have enough money to make all of their debt payments.
Also, in order to support a legal action or defense, fraud and deceit must have produced actual damages. Olson v. Fraase, 421 N.W.2d 820, 827 (N.D.1988). While the trial court found that it was improper for the Bank to have concurrent notes for the same debt, the court also found that this impropriety did not cause any loss or damage to the Wentworths. The Wentworths' own banking expert was not aware of any damage sustained by the Wentworths as a result of the Bank's holding parallel notes, other than "confusion."[9]
We have examined the conflicting evidence in the record. The evidence presented by the Bank, if believed, supports the trial court's finding that the Bank did not commit fraud, deceit, or conversion in its dealings with the Wentworths.
V
The Wentworths assert that Judge Eckert's failure to either disclose to them that he was being represented by attorney Kermit Bye, a member of the Bank's law firm, in an unrelated matter at the time of the commencement of these proceedings or, on his own motion, to disqualify himself from presiding over this case, requires reversal of the judgment. Under the unique circumstances of this case, we agree.
The Rules of Judicial Conduct direct a judge's decisions on disqualification. Rule 2 demands that "[a] judge shall avoid impropriety and the appearance of impropriety in all his activities." Rule 2(A) thus directs that "[a] judge shall respect and comply with the law and shall act in such a manner that promotes public confidence in the integrity and impartiality of the judiciary." Rule 3(C)(1)(a) makes a judge's disqualification "appropriate when the judge's impartiality might reasonably be questioned."
The disqualification directions in Rule 3(C) are not merely guidelines; they are mandatory. Matter of Estate of Risovi, 429 N.W.2d 404, 407 (N.D.1988). Our primary concern is the preservation of public respect and confidence in the integrity of the judicial system, which "can only be maintained if justice satisfies the appearance of justice." Baier v. Hampton, 440 N.W.2d 712, 715 (N.D.1989). Even without intentional bias, disqualification can be essential *878 to satisfy the appearance of justice. Id.
Because it may appear to a reasonable person that the judge's conduct of a trial might not be impartial when one of the attorneys is, even as the trial is being held, representing the judge in another matter, courts have held that disqualification should be required under these circumstances. See Potashnick v. Port City Construction Co., 609 F.2d 1101 (5th Cir. 1980); Texaco, Inc. v. Chandler, 354 F.2d 655 (10th Cir.1965); DeCamp v. Good Samaritan Hospital, 66 A.D.2d 766, 410 N.Y.S.2d 671 (1978); Reilly by Reilly v. Southeastern Pa. Transp., 330 Pa.Super. 420, 479 A.2d 973 (1984). The inquiry here is whether a reasonable person could, on the basis of objective facts, reasonably question Judge Eckert's impartiality.
William S. Williams, an attorney, commenced an action along with several others in May 1986 shortly after he had been suspended from the practice of law. Williams named 20 defendants in the action, including the State, Vivian Berg and the Disciplinary Board of the Supreme Court, Agriculture Commissioner Sarah Vogel, Attorney General Nicholas Spaeth, the State Bar Association of North Dakota (SBAND), several attorneys involved in the disciplinary process, several attorneys who represented creditors, attorney Brakke, and Judge Eckert. Attorney Bye appeared on behalf of Judge Eckert. Other members of that law firm represented attorney Brakke and SBAND. According to Williams v. State, 405 N.W.2d 615, 619 (N.D.1987), on July 22, 1986, the trial court in that case dismissed the complaint with prejudice and ordered sanctions against the plaintiffs because "`the pleadings filed by all of the Plaintiffs in this action were frivolous and presented such a complete absence of actual facts or law that a reasonable person could not have thought this Court would render judgment in the Plaintiffs' favor.'"
Williams appealed from that order, as well as from an August 26, 1986 order declaring that the plaintiffs' attempt to remove the case to federal court was null and void. Only the attorney general's office, on behalf of the state defendants, provided oral argument on appeal. Counsel for the other defendants, including Judge Eckert, joined in the brief submitted by the assistant attorney general under NDRAppP 28(i). Id. at 625 n. 14. This court dismissed the appeal from the August 26, 1986 order because it had become moot. Id. at 617. Noting that "the complaint is so amorphous and vague that it is difficult to discern exactly what the plaintiffs' claim is," we ruled that the complaint and other pleadings were "so devoid of either facts or law that a reasonable person could not expect a favorable judgment on them." Id. at 623. We affirmed the trial court's July 22, 1986 order, concluding not only that the trial court acted within its discretion in entering sanctions, but that sanctions were "mandated" under the circumstances. Id. at 624. Because the appeal was so "flagrantly groundless," we awarded double costs and reasonable attorney fees for the amounts expended by the assistant attorney general in defending the state defendants. Id. at 625. We remanded to the district court with instructions "to determine and enforce the payment of costs and attorneys' fees." Id. at 626. Williams was decided by this court on May 4, 1987, approximately four weeks before Judge Eckert presided over the hearing to determine whether the Bank was entitled to immediate possession of the Wentworths' collateral.
However, another order had been entered in the Williams litigation. In this October 23, 1986 order, the trial court entered sanctions against 27 of the plaintiffs in the amount of $10,209.34, awarded injunctive relief against two of the plaintiffs, and ordered that any plaintiff who filed a notice of appeal from that order was required to file a bond for costs on appeal with the district court in the amount of $2,000 for each appellant. Seven of the plaintiffs appealed, but did not file appeal bonds or briefs on the merits. Almost nine months after the plaintiffs' briefs were due, the assistant attorney general moved in September 1987 to dismiss the appeal. Attorney Bye, on behalf of Judge Eckert, *879 joined in the motion and submitted a supplemental brief in support of the motion. On October 7, 1987, we summarily dismissed the appeal in an unpublished order.
In March 1988, a judgment for $9,199.92 was entered in favor of the state defendants, who were represented by the assistant attorney general, against 15 of the plaintiffs. This judgment did not award anything to Judge Eckert.
The Williams litigation was nothing more than a nuisance lawsuit and is a veritable definition of frivolity for purposes of NDCC 28-26-01, NDRCivP 11, and NDRAppP 38 sanctions in this jurisdiction. The major portion of the lawsuit, with regard to the defendants who were not represented by the attorney general's office, had been completed prior to the June 1, 1987 hearing on the Bank's entitlement to immediate possession of the Wentworths' collateral. The Williams plaintiffs had essentially abandoned their appeal from the October 23, 1986 order. Obtaining dismissal of that appeal was an insignificant part of putting that lawsuit to rest. Attorney Bye did not appear before Judge Eckert in the Wentworth proceedings. The actual trial of the main foreclosure action against the Wentworths did not occur until October 1991, long after the Williams litigation had been completed. Our review of the voluminous record compiled in this case reveals no hint of actual bias on the part of Judge Eckert.[10] Rather, the record reveals that Judge Eckert exercised meticulous consideration of all of his rulings in these proceedings.
If this case had been an ordinary, uncomplicated, and straight forward foreclosure action, or if the case had been submitted to a jury, we would have no difficulty in concluding that a reasonable person would not have reasonably questioned Judge Eckert's impartiality, and that disqualification was not required. See, e.g., Desnick v. Mast, 311 Minn. 356, 249 N.W.2d 878, 882-883 (1976). However, this was hardly an ordinary foreclosure action. Rather, the credibility of the parties was crucial in resolving this litigation.
The Bank's handling of its credit relationship with the Wentworths was, at best, bumbling and clumsy. At worst, it raises inferences of fraud, deceit, illegality and other improprieties. The Bank failed to mark promissory notes "renewed" when they were replaced by another promissory note. The Bank improperly held two parallel promissory notes representing the same debt. The Bank applied loan payments contrary to the instructions of the Wentworths. The Bank's attorney, Brakke, who was Judge Eckert's codefendant in Williams, attested to the validity of an invalid promissory note in these proceedings.
Despite these difficulties, Judge Eckert ruled in favor of the Bank, adopting virtually all of its explanations for its actions and reasoning that these actions caused the Wentworths no harm. Although Judge Eckert's findings are supported by some of the evidence in the record, there is conflicting evidence that could also support contrary findings on many of the factual questions.
Because Judge Eckert had been represented by the Bank's law firm during the initial proceedings for immediate possession of the collateral, a reasonable person could reasonably question Judge Eckert's impartiality in accepting the Bank's version of the facts over the Wentworths' version of the facts.
Given the nature of this complicated foreclosure action and Judge Eckert's unintentional entanglement with Brakke and his law firm through the Williams litigation, we must conclude that a reasonable person could, on the basis of these objective facts, reasonably question Judge Eckert's impartiality, and that disqualification was required.
A violation of the Rules of Judicial Conduct by the judge who presides over a case can result in the reversal of a *880 judgment. Baier; Matter of Estate of Risovi. This can occur even when the judge has no actual knowledge of, or inadvertently overlooks, a disqualifying circumstance. See Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S. Ct. 2194, 100 L. Ed. 2d 855 (1988). Judge Eckert's conduct did not show any intentionally unethical behavior, nor can any be implied in view of the frivolity of the Williams litigation. Rather, the record shows beyond question that Judge Eckert fairly tried this case. Nevertheless, the appearance of impropriety is so important to our judicial system that, in the interests of justice, reversal of a judgment may be required even without any intentional bias or impropriety. See Baier; Matter of Estate of Risovi; see also Liljeberg, 486 U.S. at 864, 108 S.Ct. at 2205 [for a violation of 28 U.S.C. § 455(a), which requires disqualification when a judge's impartiality might reasonably be questioned, "it is appropriate to consider the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public's confidence in the judicial process"]. We conclude that this is such a case.
We have not directly applied the Liljeberg test in this case, which is a direct appeal from a judgment, even though there is no trial court record of the facts involving the disqualification issue, and we have had to take judicial notice of the facts in Williams. See NDREv 201. Nevertheless, it may be appropriate to consider adopting the Supreme Court's formulation of the Liljeberg test in possible future cases. Even if we were to apply the Liljeberg test in this case, the result would be the same because of the peculiarities of this case and not because of any intentional misconduct on the part of Judge Eckert.
Accordingly, we reverse the judgment and remand for a new trial before a different trial judge to be designated.
VANDE WALLE, C.J., and RALPH J. ERICKSTAD, VERNON R. PEDERSON and BERT L. WILSON, Surrogate Judges, concur.
Surrogate Judge RALPH J. ERICKSTAD was Chief Justice at the time this case was heard and served as surrogate judge for this case pursuant to NDCC 27-17-03.
BERT L. WILSON and VERNON R. PEDERSON, Surrogate Judges, sitting in place of LEVINE and JOHNSON, JJ., disqualified, who was a member of the Court when this case was heard.
Justice NEUMANN and Justice SANDSTROM, not being members of the Court when this case was heard, did not participate in this decision.
VERNON R. PEDERSON, Surrogate Judge, concurring specially.
The opinion authored by Justice Meschke is thoughtful and scholarly and has convinced me that there are some valid justifications for a reversal of the judgment. I am convinced that I should join in that opinion but I am equally convinced that I am left with a few unanswered bothersome questions.
I start with the basic premise that "when you borrow, you have to repay." Psalms, Chapter 37-Verse 21; Proverbs, Chapter 3-Verses 27 and 28; and Proverbs, Chapter 22-Verse 7, all seem to tell me that. Does a lender have to proceed with exactitude and be somehow "otherwise qualified" to collect when payments are overdue? What kinds of errors by the court will hereafter be held to be alterations of the basic premise? A fair trial is the usual standard, especially in criminal practice; since when are civil litigants entitled to a "perfect trial"? Is the cure in farm foreclosure cases more onerous than the disease? Or, does a hollow victory make it all worthwhile? Finally, are we not merely dangling a mythical carrot before the debtors, inviting them to battle on for an ultimate, costly, and certain defeat at the end?
NOTES
[1] The trial court found that the Wentworths had executed the following promissory notes that are the subject of this action:
a. Note dated March 6, 1984 in the principal amount of $225,000, representing renewal of the then existing chattel and operating loans and bearing the signature of "John E. Wentworth."...
b. Note dated September 30, 1985 in the principal amount of $7,800, representing renewal of loan for a Gleanor combine and bearing the signature of "Beth R. Wentworth" under the typed words "Wentworth Ranch."...
c. Note dated December 16, 1985 in the principal amount of $106,400, representing renewal of 1985 operating loans and bearing the signature of "John E. Wentworth" under the typed words "Wentworth Ranch." ...
d. Note dated December 30, 1985 in the principal amount of $16,377, representing an operating loan signed by "John E. Wentworth." ...
e. Note dated January 30, 1986 in the principal amount of $11,550, representing an operating loan signed by "John Wentworth." ...
f. Note dated February 28, 1986 in the principal amount of $3,000, representing an operating loan and bearing the signature of "John E. Wentworth" under the typed words "Wentworth Ranch." ...
g. Note dated March 31, 1986 in the principal amount of $11,000, representing an operating loan and bearing the signature of "John Wentworth" under the typed words "Wentworth Ranch." ...
h. Note dated May 13, 1986 in the principal amount of $4,077.45, representing an operating loan bearing the signature of "Beth R. Wentworth" under the typed words "Wentworth Ranch." ...
i. Note dated May 19, 1986 in the principal amount of $8,275.79, representing an operating loan bearing the signature of "Beth R. Wentworth" under the typed words "Wentworth Ranch." ...
j. Note dated June 17, 1986 in the principal amount of $7,000, representing an operating loan bearing the signature "Wentworth Ranch John E. Wentworth" under the typed words "Wentworth Ranch." ...
k. Note dated June 30, 1986 in the principal amount of $10,000 representing an operating loan bearing the signature of "John E. Wentworth" under the typed words "Wentworth Ranch." ...
l. Note dated July 28, 1986 in the principal amount of $5,634.39, representing an operating loan bearing the signature of "John E. Wentworth" under the typed words "Wentworth Ranch." ...
m. Note dated September 8, 1986 in the principal amount of $9,393.91, representing an operating loan bearing the signature of "John E. Wentworth" under the typed words "Wentworth Ranch." ...
n. Note dated November 24, 1986 in the principal amount of $5,250, representing an operating loan bearing the signature of "John E. Wentworth" under the typed words "Wentworth Ranch." ...
o. Note dated December 3, 1986 in the principal amount of $4,430, representing an operating loan bearing the signature of "Beth Wentworth." ...
The Wentworths had also executed a $200,000 promissory note dated December 5, 1983, a $25,000 promissory note dated February 24, 1984, and a $208,177.37 promissory note dated December 17, 1984.
[2] The first security agreement, dated July 6, 1982, granted the Bank a security interest in all of the Wentworths' then-owned or thereafter-acquired farm equipment, vehicles, livestock, supplies, and their proceeds and products. The second, dated May 24, 1984, granted the Bank a security interest in the Wentworths' 1984 crops grown on certain real estate, together with their proceeds and products. The third, dated March 27, 1985, granted the Bank a security interest in the Wentworths' 1985 crops grown on certain real estate, together with their proceeds and products. The fourth, dated May 13, 1986, granted the Bank a security interest in the Wentworths' 1986 crops grown on certain real estate, together with their proceeds and products.
[3] The Wentworths did not turn over these proceeds until August 1987, under a court order. The Bank applied these proceeds to the FmHA guaranteed note.
[4] We strongly disapprove of the practice of an attorney filing a factual affidavit on behalf of his client. See Porter v. Porter, 274 N.W.2d 235, 243 n. 1 (N.D.1979). The comment to North Dakota Rules of Professional Conduct 3.7 succinctly explains why:
Combining the roles of advocate and witness can prejudice the opposing party and can involve a conflict of interest between the lawyer and client.
The opposing party has proper objection where the combination of roles may prejudice that party's rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.
Furthermore, judicial action ordinarily requires that
affidavits [must] be made on personal knowledge; set forth facts that would be admissible in evidence and show affirmatively that the affiant is competent to testify to the matters included in the affidavits [citations omitted]. However, without timely objection, otherwise inadmissible evidence may be considered by the court....
Williston Co-op. Credit Union v. Fossum, 427 N.W.2d 804, 806 (N.D.1988). Here, the Wentworths did not object to Brakke's affidavit on hearsay or competency grounds at the hearing on immediate possession.
[5] The relevant part of Rule 1.7 of the North Dakota Rules of Professional Conduct directs:
CONFLICT OF INTEREST: GENERAL RULE
(a) A lawyer shall not represent a client if the lawyer's ability to consider, recommend, or carry out a course of action on behalf of the client will be adversely affected by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests.
(b) A lawyer shall not represent a client when the lawyer's own interests are likely to adversely affect the representation.
(c) A lawyer shall not represent a client if the representation of that client might be adversely affected by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
(1) The lawyer reasonably believes the representation will not be adversely affected; and
(2) The client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
[6] "Fraud on the court" has been characterized as "a scheme to interfere with the judicial machinery performing the task of impartial adjudication, as by preventing the opposing party from fairly presenting his case or defense." Pfizer, Inc. v. International Rectifier Corp., 538 F.2d 180, 195 (8th Cir.1976). The term "contemplates conduct so egregious that it undermines the integrity of the judicial process." Stone v. Stone, 647 P.2d 582, 586 n. 7 (Alaska 1982). A finding of fraud on the court is justified only by the most egregious misconduct directed to the court itself, such as bribery of a judge or jury or fabrication of evidence by counsel, and must be supported by "clear, unequivocal and convincing evidence." Pfizer, Inc.. As a specific ground for relief under NDRCivP 60(b), fraud on the court usually results in the setting aside of the judgment. See generally Annot., Construction and Application of Provision of Rule 60(b) of Federal Rules of Civil Procedure that Rule Does not Limit Power of Federal District Court to Set Aside Judgment for "Fraud Upon the Court", 19 A.L.R.Fed. 761 (1974); Goetz v. Gunsch, 80 N.W.2d 548 (N.D.1956); Rykowsky v. Bentz, 45 N.D. 499, 178 N.W. 284 (1920); Yorke v. Yorke, 3 N.D. 343, 55 N.W. 1095 (1893).
[7] NDCC 41-03-80 says:
Renewal of promissory noteCancellation and return of renewed note or marking thereof Penalty. No person, firm, or corporation, or state or national bank doing business in this state, shall take from any debtor or other person or concern obligated upon a negotiable promissory note or other negotiable obligation, any renewal thereof without, at the time, either:
1. Canceling and returning to the maker of the renewal the original obligation so renewed; or
2. Marking or causing to be marked across the face of the renewed instrument in legible writing in ink, or to be typewritten thereon, the word "renewed" or words of like import and effect.
Any person, firm, corporation, or bank taking any such renewal note or contract without complying with the provisions of this section shall be liable to any person or concern for all loss or damage suffered thereby, and if the failure so to comply was intentional, shall be guilty of a class A misdemeanor.
The trial court ruled that, although the Bank "may have unintentionally violated" this statute, the holding of parallel notes in this case did not increase, alter, or affect the amount of debt owed to the Bank, did not cause or create any default, did not affect the Bank's right to repossession of collateral following default, and did not cause the Wentworths any harm.
[8] Compare NDCC 9-12-07:
Performance when there are several obligations Application. When a debtor under several obligations to another does an act by way of performance, in whole or in part, which is applicable equally to two or more of such obligations, such performance must be applied as follows:
1. If, at the time of the performance, the intention or desire of the debtor that such performance should be applied to the extinction of any particular obligation is manifested to the creditor, it must be applied in such manner.
2. If no such application is then made, the creditor, within a reasonable time after such performance, may apply it toward the extinction of any obligation the performance of which was due to him from the debtor at the time of such performance, except that if similar obligations were due to him both individually and as a trustee, unless otherwise directed by the debtor, he shall apply the performance to the extinction of all such obligations in equal proportion. An application once made by the creditor cannot be rescinded without the consent of the debtor.
3. If neither party makes such application within the time prescribed herein, the performance must be applied to the extinction of obligations in the following order, and if there is more than one obligation of a particular class, to the extinction of all in that class ratably.
a. Of interest due at the time of the performance.
b. Of principal due at the time of performance.
c. Of the obligation earliest in date of maturity.
d. Of an obligation not secured by a lien or collateral undertaking.
e. Of an obligation secured by a lien or collateral undertaking.
Although the Wentworths assert that the Bank misapplied payments in this case, NDCC 9-12-07 applies only when the payment is tendered by the debtor voluntarily. See State Bank of Streeter v. Nester, 385 N.W.2d 95, 97 (N.D.1986). Because the funds acquired by the Wentworths from the sale of calves constituted proceeds from the sale of secured property under one of the Bank's security agreements, it is not clear whether NDCC 9-12-07 applies here. See Gallatin Trust & Savings Bank v. Darrah, 153 Mont. 228, 456 P.2d 288, 289 (1969) (construing statutes identical to NDCC 9-12-07). Even if NDCC 9-12-07 applies under these circumstances, the remedy for a violation of the statute is to treat the incorrectly applied payment as having been applied as directed. See Hagen v. Dwyer, 36 N.D. 346, 162 N.W. 699, 701 (1917). The trial court agreed with the Bank that applying the calf proceeds as the Wentworths directed would still have resulted in a default under the terms of the guaranteed note.
The trial court also found that:
In 1985 and 1986 the Wentworths sold machinery, had sales of cull cows and bulls together with two substantial calf sales. If the proceeds had been applied to the 1985 or 1986 payments due on the guaranteed loan (Plaintiff's Exhibit 5), the payments would have exceeded the two installments due on March 6, 1985 and March 6, 1986. This would have meant, however, less money for the operating loans and the Bank would not have advanced money for operating loans after the initial calf sale of December 17, 1984. In 1985 the Bank continued to lend the Wentworths operating money on a regular basis. Without the operating loans the Wentworths would have been unable to continue ranching and farming.
There is evidence in the record that, if believed, supports this finding.
[9] Furthermore, a renewed but unmarked note is only uncollectible if the bank is unable to "surrender all notes taken in renewal thereof" or unwilling to satisfactorily indemnify the maker "against liability thereon." NDCC 41-03-81. It is arguable that the Wentworths proved no loss.
[10] The Wentworths' assertion that Judge Eckert had "prejudged the merits" of their case is without merit. A disagreement on legal questions does not evidence bias. See Ireland's Lumber Yard v. Progressive Contractors, 122 N.W.2d 554, 562 (N.D.1963). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625315/ | 500 N.W.2d 818 (1993)
243 Neb. 522
STATE of Nebraska, Appellee,
v.
Richard Edward ELLEN, Appellant.
No. S-92-933.
Supreme Court of Nebraska.
May 28, 1993.
*819 Harry A. Moore, Madison County Public Defender, for appellant.
Don Stenberg, Atty. Gen. and Delores Coe-Barbee, Lincoln, for appellee.
HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, FAHRNBRUCH, and LANPHIER, JJ.
LANPHIER, Justice.
Contending that the sentences imposed by the Madison County District Court are excessive, defendant, Richard Edward Ellen, appeals his sentence of life imprisonment for second degree murder and his consecutive sentence of 5 to 15 years for first degree assault. We affirm.
BACKGROUND
The events leading to the murder of Lonnie Edwards took place on the evening of July 18, 1989, in Madison, Nebraska. On that night, defendant and several other employees of Mid-American Carnival went into the city of Madison, visiting several bars. At one of these establishments the group encountered other workers from the carnival, including Charlie Tidwell and the victim, Edwards. Edwards offered defendant and his friends a pitcher of beer, which defendant refused. Edwards persisted in his offer, as did defendant in his refusal, which eventually led to an argument in which defendant told Edwards to sit down and quit bothering him. Later that evening, Edwards approached defendant's wife and asked her to dance. When she refused, Edwards insulted her, using an obscenity.
Prior to leaving the bar for the evening, defendant made a comment to Tidwell about killing a "nigger," evidently in reference to Edwards. On the way home, defendant further remarked that he should hit Edwards "in the head and throw him in the river and get rid of him." After returning to the carnival encampment, defendant, Tidwell, and a number of others continued to drink at defendant's trailer. Following further discussion, defendant decided to confront Edwards. He left his trailer, picked up an ax or mallet handle which he used as part of his carnival exhibit, and walked to a nearby bridge, where he saw Edwards. Defendant approached Edwards, whereupon an argument ensued concerning the "incidents" which had taken place earlier that evening. Defendant hit Edwards two or three times with the handle, apparently breaking Edwards' arm. Tidwell may have also struck Edwards with the handle at this time. Either defendant or Tidwell then discarded the handle, and both returned to defendant's trailer.
Arriving at the trailer, defendant and Tidwell removed their bloodied shirts, put them in a bag, and gave the bag to defendant's stepdaughter to discard. When the stepdaughter returned from disposing of the clothes, she informed defendant that Edwards was in the trailer compound telling others that defendant had broken his arm. An autopsy would later confirm that Edwards' left arm had been broken. After hearing the stepdaughter's story, defendant and Tidwell went outside, where they located Edwards, and either one or both of them again assaulted Edwards by striking him with their fists. At this point, it was approximately 3 a.m. on July 19.
Edwards was then, either by force or persuasion, placed in a truck by defendant and Tidwell, on the pretense that they would take him to a hospital. Driving with the truck's lights off, defendant proceeded *820 a short distance on a paved road and then turned onto a field access road. Defendant and Tidwell then pulled Edwards out of the truck. After dragging him down a hill, either defendant or Tidwell proceeded to strike Edwards in the head with a 4-foot-long metal bar, bludgeoning him to death. An autopsy indicated that Edwards had sustained intense and severe blows to the head, several of which penetrated his brain, and one of which cut halfway through his brain stem.
After returning to the carnival encampment, defendant fled Madison during the early morning hours of July 19. He eventually arrived in Oregon, where he lived under an alias for nearly 2 years. On June 7, 1991, defendant surrendered to Oregon authorities after seeing himself on the television program "America's Most Wanted." Defendant was arraigned in district court on October 23, on an information charging him with first degree murder. At his arraignment on the information, defendant stood mute. The district judge entered a plea of not guilty for defendant.
A plea agreement was later reached between defendant and the prosecutor, and on July 16, 1992, defendant pled guilty to second degree murder and first degree assault in exchange for the State's dropping the first degree murder charge. Second degree murder is a Class IB felony, Neb. Rev.Stat. § 28-304(2) (Reissue 1989), which carries a maximum penalty of life imprisonment and a minimum penalty of 10 years' imprisonment, Neb.Rev.Stat. § 28-105(1) (Reissue 1985). First degree assault is a Class III felony, Neb.Rev.Stat. § 28-308 (Reissue 1989), which is punishable by a maximum period of 20 years' imprisonment, a $25,000 fine, or both, with a minimum period of 1 year's imprisonment, § 28-105(1). On September 19, 1992, defendant was sentenced to life imprisonment on the second degree murder charge and 5 to 15 years' imprisonment on the first degree assault charge, with the sentences to run consecutively. Defendant appeals his sentences to this court.
ASSIGNMENT OF ERROR
Defendant assigns a single error, contending that "[t]he sentences imposed upon [him] are excessive, and the District Court abused its discretion in imposing such sentences."
STANDARD OF REVIEW
"Except under certain circumstances when the Supreme Court is reviewing a sentence of death, State v. Reeves, 239 Neb. 419, 476 N.W.2d 829 (1991), it is not the function of an appellate court to conduct a de novo review of the record to determine whether a sentence is appropriate." State v. Hall, 242 Neb. 92, 95, 492 N.W.2d 884, 886 (1992). We have long adhered to the doctrine that to the trial court and not to an appellate court is entrusted the power to impose sentences for the commission of crimes against the State, and the judgments of that court cannot be controlled or interfered with in the absence of an abuse of discretion. See, State v. Hall, supra; Wright v. State, 45 Neb. 44, 63 N.W. 147 (1895). We have also declared that "[a] sentence imposed within the statutory limits will not be disturbed on appeal in the absence of an abuse of discretion by the trial court." State v. Coleman, 241 Neb. 731, 733, 490 N.W.2d 222, 224 (1992). See, also, Neb.Rev.Stat. § 29-2308 (Supp. 1991). With these maxims in mind, we turn to our review of defendant's sentences.
THE SENTENCES
Defendant argues that the sentences imposed by the district court "are excessive, and are an abuse of discretion by the district court; a sentence of 10 years should have been imposed on Count I [second degree murder], and a sentence of one year should have been imposed on Count II [first degree assault]." Brief for appellant at 13. Defendant bases this argument almost exclusively on a claim that on the night in question, he was acting under the "extreme influence of alcohol." Id. At no point, however, does he contend that he was unaware of what he was doing due to his use of alcohol or that his intoxication *821 prevented him from having the requisite mens rea for the offenses to which he pled guilty. The defendant merely concludes that his intoxication "should have been considered by the sentencing court as a factor in strong mitigation of his punishment." Id. We disagree.
In State v. Gamron, 186 Neb. 249, 251, 182 N.W.2d 425, 427 (1970), this court held: "Where one deliberately pursues a course to voluntarily become intoxicated, as here, particularly where defendant was fully aware of his propensity to violate the law when drunk, there is little that can be said in his behalf in mitigation of the crime or the punishment." In the instant case, the record shows that defendant perceives himself as having an alcohol problem. He also acknowledges that he is inclined to become abusive when he drinks too much. Nevertheless, the evidence shows that defendant had been drinking throughout the day on July 18, 1989, and that he continued doing so until the early morning hours of July 19, when the murder of Edwards occurred. As this court further stated in Gamron, "The lives and property of the public are entitled to protection against the criminal conduct of those who become voluntarily intoxicated." Id. See, also, State v. Turner, 221 Neb. 852, 381 N.W.2d 149 (1986) (defendant's intoxication apparently regarded as an aggravating condition rather than a mitigating one). Therefore, while we do not hold that intoxication can never be considered a mitigating circumstance, we find defendant's contention that his drinking be considered such in the present case unpersuasive.
In determining an appropriate sentence, the district court conducted an extensive sentencing hearing, which generated some 221 pages of material. In addition, pursuant to Neb.Rev.Stat. § 29-2261 (Reissue 1989), a presentence report containing 87 pages of information was prepared by the Nebraska Probation System and delivered to the court. The presentence report indicated that defendant had numerous police contacts dating back to 1972, including arrests for loitering, resisting arrest, and theft of services, as well as three arrests for driving while intoxicated and numerous arrests for public intoxication. Further, defendant's military service record indicated that while he was in the U.S. Marine Corps, he was court-martialed twice for breaking restrictions, theft, and being absent without leave. Defendant spent 4 months in the Portsmouth Naval Prison for these infractions before receiving an undesirable discharge in 1970. These myriad offenses, while generally petty and nonviolent in nature, nonetheless constitute a history of criminal activity, a circumstance which may be considered by a sentencing court. See State v. Smith, 240 Neb. 97, 480 N.W.2d 705 (1992).
In imposing a sentence, a sentencing judge should consider the defendant's age, mentality, education, experience, and social and cultural background, as well as his or her past criminal record or law-abiding conduct, motivation for the offense, nature of the offense, and the amount of violence involved in the commission of the crime. Id. From the facts and circumstances of this case, the district court determined that the complained-of sentences were appropriate, finding that "a lesser sentence would depreciate the seriousness of the offense and promote disrespect for the law." Had defendant been convicted of the original charges brought against him, and had he been given the maximum sentence, he would have faced the death penalty. See, Neb.Rev.Stat. § 28-303 (Reissue 1989); § 28-105(1). Due to his plea bargain, defendant has thus already received a substantially reduced penalty by escaping the possibility of being sentenced to death.
CONCLUSION
Defendant's sentences were clearly within the statutory limits of the penalties for the crimes to which he pled guilty. The sentences are not excessive and do not constitute an abuse of discretion by the trial court, which determined that defendant's cruel, violent, brutal, and senseless acts "deserve the most serious of consequences." Accordingly, the sentences imposed by the district court are affirmed. The motions filed by defendant after submission *822 of this appeal are overruled as moot.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625342/ | 689 S.W.2d 782 (1985)
STATE of Missouri Plaintiff-Respondent,
v.
Louis Anthony WORKES, Defendant-Appellant.
No. 48546.
Missouri Court of Appeals, Eastern District, Division Four.
March 26, 1985.
Motion For Rehearing and/or Transfer Denied April 26, 1985.
Application to Transfer Denied May 29, 1985.
*783 Henry B. Robertson, St. Louis, for defendant-appellant.
John D. Ashcroft, Jefferson City, for plaintiff-respondent.
Motion For Rehearing and/or Transfer to Supreme Court Denied April 26, 1985.
*784 SMITH, Presiding Judge.
Defendant appeals from his conviction by a jury for forcible rape, forcible sodomy, kidnapping, and robbery in the second degree. He was sentenced to a total of 80 consecutive years by the trial court. We affirm.
On appeal defendant challenges his convictions of robbery and rape on the basis that no submissible case was made. He also postulates error in the admission of evidence concerning the victim's physical response upon viewing lineups. Some statement of the facts is required.
The victim had gone to her place of employment at a Hardee's Restaurant in Maplewood. She arrived there at 4:20 a.m. and was sitting on the curb waiting the arrival of the manager to open the building. Defendant and his co-defendant, Meyer, approached her in a truck. After some perfunctory conversation defendant got out of the truck and grabbed the victim around the neck. She was forced into the truck between the two men. Defendant drove the truck to a park in the City of St. Louis. While en route the victim was forced to perform fellatio on each man. Upon arrival in the park the victim was removed from the truck by Meyer and taken to a tree. There the victim was again forced to perform fellatio but after a short time Meyer abandoned that activity and had sexual intercourse with the victim. Upon completion of Meyer's activities defendant arrived from the truck and forced the victim to complete his "blow job." After this had been accomplished the victim and defendant returned to the truck. The victim was returned to her place of employment with a warning not to report the incident. She subsequently discovered that $10 had been removed from her purse. The purse had been constantly in her possession except for the time she was out of the truck. Meyer and defendant were not present together with the victim in the park while she was out of the truck.
Defendant admitted his presence at the scene but denied having any sexual relationship with the victim and testified she willingly entered the truck and went into the park with Meyer. The co-defendant, Meyer, testified that the victim, previously unknown to him, willingly entered the truck, willingly went with him into the park, initiated an act of fellatio and willingly had intercourse with him. Witnesses testified that the victim was agitated and crying at the restaurant, at the hospital and after release from the hospital.
Defendant first contends that the evidence failed to establish that the taking of money from victim's purse was as a result of violence or threat of violence and that at most stealing was proven. It is a reasonable inference from the evidence that the money was taken while the victim was out of the truck with one of the co-defendants. Sec. 569.030 RSMo 1978, provides that a person commits robbery in the second degree when he "forcibly steals property." "Forcibly steals" is defined in Sec. 569.010 RSMo 1978, as "when, in the course of stealing, ... he uses or threatens the immediate use of physical force upon another person for the purpose of: (a) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking;" (Emphasis supplied). It is not necessary that property be taken from the immediate physical presence of the victim in order to constitute robbery. State v. Atkins, 549 S.W.2d 927 (Mo.App.1977) [1-7]. Nor is it necessary that the force or threat of force immediately accompany the taking. State v. Harris, 622 S.W.2d 742 (Mo.App.1981) [3, 4]. It is not essential that the victim be aware of the robbery if force is utilized to render her unaware of the taking. State v. Williams, 548 S.W.2d 227 (Mo.App.1977) [1-3].
Here the victim was placed into the truck through force and threat of violence. She was removed from the truck and taken into the park in the same way. That force served to prevent her resistance to the taking of the money. That force or threat of force continued while she was in the park. Defendant was aware of this. Without the force neither co-defendant would *785 have had the opportunity to steal the money. Under the circumstances here the stealing of the money constituted robbery as it occurred while the victim was under the threat of force, and that force made her unaware of the theft.
We similarly reject defendant's contention that the evidence was insufficient because it did not establish an intention to rob at the time force was first exercised when the victim was abducted. The force continued from the beginning to the end of the episode and the formation of the intent to steal occurred during the continuation of that force and in reliance on that force. The state made a submissible case of robbery in the second degree.
Defendant next contends that the rape charge was not established because the evidence indicated that when Meyer took the victim into the park he intended to commit sodomy not rape. Defendant therefore posits that his liability as an aider and abettor was not proven under Secs. 562.036 and 562.041 RSMo 1978, because he did not aid Meyer in committing the rape. It is true that a culpable mental state must be found for all offenses for which the defendant is to be held liable. State v. Logan, 645 S.W.2d 60 (Mo.App. 1982) [2]. But we think it too broadly states the proposition to require the evidence to establish a defendant's specific knowledge of which particular crime his co-participant will commit. The courts have held that culpable mental state may be inferred from the circumstances. State v. Turner, 623 S.W.2d 4 (Mo. banc 1981) [3, 4]; State v. Millican, 641 S.W.2d 144 (Mo. App.1982) [3]. That is simply a way of expressing the concept that if a defendant has embarked upon a course of criminal conduct with others, he is responsible for those crimes which he could reasonably anticipate would be a part of that conduct. State v. Logan, supra.
Sec. 562.041 defining responsibility for criminal conduct states a person bears criminal responsibility when
"(2) either before or during the commission of an offense with the purpose of promoting the commission of an offense, he aids or agrees to aid or attempts to aid such other person in planning, committing or attempting to commit the offense." (Emphasis supplied).
The utilization of the indefinite article "an" to describe the offense when dealing with the required purpose, i.e. mental state, reflects the statutory intention to place accountability in a co-participant for the specific crime committed by another as part of the criminal activity. Here the victim was subjected to assaultive conduct kidnapping and forcible sodomy prior to arrival in the park. It is certainly inferable that her removal from the truck by Meyer was with the intent to commit further assaultive acts. Rape is such an act. It is frequently a companion act to forcible sodomy. Defendant assisted Meyer in bringing the victim to the park and in assaulting her on the way there. He was aware that she would be further assaulted by Meyer in the park. He had the culpable mental state to assist Meyer in assaulting the victim. That he may have believed that that assault would be directed to a different orifice than it was in no way relieves him of responsibility for the assault which actually occurred. The evidence was sufficient to support the conviction of rape.
Defendant's final point challenges the admissibility of testimony of a police officer that at lineups on the same day as the assaults the victim backed away as she pointed out the defendant and Meyer. It is contended that this constituted hearsay. Identification was not an issue in the case; defendant admitted his presence. The testimony that the victim pointed out defendant and Meyer in the lineups, if hearsay, could not have been prejudicial. Because the litigated issue was consent, the victim's recoil at seeing defendant and Meyer could be perceived as indicating fear or revulsion and therefore was probative on the consent issue. But the act of the victim in backing away was not intended as an assertion of fact. It was rather a spontaneous reaction and its description by the police officer was not hearsay. State v. Abram, 632 S.W.2d *786 60 (Mo.App.1982) [7]. The evidence was properly admitted.
Judgment affirmed.
SNYDER and SATZ, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625354/ | 500 N.W.2d 136 (1993)
MINNESOTA FEDERATION OF TEACHERS, et al., Appellants,
v.
Gene MAMMENGA, Commissioner of the Minnesota Department of Education, et al.,
Bethel College and Seminary, Respondents.
No. C8-92-2455.
Court of Appeals of Minnesota.
May 18, 1993.
Review Denied August 6, 1993.
*137 Roger A. Peterson, Ronald G. Marks, Hubert G. Leon, Peterson, Engberg & Peterson, Minneapolis, for appellants.
Hubert H. Humphrey, III, Atty. Gen., Charles T. Mottl, Asst. Atty. Gen., Cindy L. Lavorato, Spec. Asst. Atty. Gen., St. Paul, for Gene Mammenga, et al.
James P. McCarthy, Laura L. Daly, Lindquist & Vennum, Minneapolis, for Bethel College & Seminary.
Considered and decided by NORTON, P.J., and SCHUMACHER and PETERSON, JJ.
OPINION
SCHUMACHER, Judge.
Appellants Minnesota Federation of Teachers (MFT) and Sandra Peterson, its president, challenge the constitutionality under the Minnesota Constitution's establishment clauses, Minn. Const. art. 1, § 16, and art. 13, § 2, of the Post-Secondary Enrollment Options Act as applied to respondent Bethel College and Seminary. The district court granted summary judgment to Bethel and respondents Gene Mammenga, Commissioner of the Minnesota Department of Education, and Thomas Lindquist, President of the State Board of Education. We affirm.
FACTS
The Post-Secondary Enrollment Options Act (PSEOA), Minn.Stat. § 123.3514 (1990), permits eleventh and twelfth-grade students in public schools to apply to any eligible college or university to take courses for either secondary or post-secondary credit. If the student takes courses for secondary credit, the state reimburses the college or university for the lesser of the actual cost of tuition, materials, fees, and textbooks or the amount equal to the product of a formula involving the school district's "basic revenue." Id., subd. 6.[1] Students may enroll in participating private colleges, but reimbursement is only provided for nonsectarian courses. Id., subd. 2.
In February 1991, MFT and Peterson sued 15 Minnesota private colleges, including Bethel, arguing the PSEOA violates the Minnesota Constitution's establishment *138 clauses. The district court granted summary judgment, holding the PSEOA was facially constitutional and concluding the findings in an earlier federal district court decision, Minnesota Fed'n of Teachers v. Nelson, 740 F. Supp. 694, 715-21 (D.Minn. 1990), collaterally estopped the MFT and Peterson from relitigating whether the colleges were sectarian and how the colleges used PSEOA funds. This court affirmed the district court's holding in part, but it reversed and remanded as to Bethel because of the "absence of findings" on Bethel's sectarian/secular nature and its use of PSEOA funds. Minnesota Fed'n of Teachers v. Mammenga, 485 N.W.2d 305, 310-11 (Minn.App.1992), pet. for rev. denied (Minn. June 30, 1992) (Mammenga I).
After remand, Bethel permitted discovery about the use of PSEOA funds but did not comply with MFT's discovery requests about its alleged sectarian nature. In October 1992, Bethel and the state moved for summary judgment, contending dismissal was proper as a matter of law because (1) Bethel's benefit from PSEOA funds was indirect and incidental and (2) inquiry into Bethel's sectarian nature was therefore not necessary. For the summary judgment motion, Bethel permitted the presumption that it was pervasively sectarian. The district court granted Bethel summary judgment, and this appeal followed.
ISSUE
Can Bethel College, a presumptively sectarian school, participate under the PSEOA without violating the Minnesota Constitution's establishment clauses?
ANALYSIS
On appeal from summary judgment, the reviewing court must
determine (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law.
Betlach v. Wayzata Condominium, 281 N.W.2d 328, 330 (Minn.1979). If the reviewing court determines material issues of fact exist, the case should be remanded to the district court without a decision on the legal issues. Caledonia Community Hosp. v. Liebenberg Smiley Glotter & Assocs. Inc., 308 Minn. 255, 258-59, 248 N.W.2d 279, 281 (1976). In reviewing questions of law, this court need not defer to the district court's legal conclusions and is free to independently determine the applicable law. Dahlheimer v. City of Dayton, 441 N.W.2d 534, 536 (Minn.App.1989), pet. for rev. denied (Minn. Aug. 15, 1989).
The Minnesota Constitution's establishment clauses prohibit both "benefits" and "support" to schools teaching distinctive religious doctrines. Minn. Const. art. I, § 16, and art. XIII, § 2.[2] In applying the establishment clauses, a two-step inquiry exists: (1) is the public benefit or support to the school indirect and incidental; and (2) is the school pervasively sectarian. Mammenga I, 485 N.W.2d at 310; see also Americans United, Inc. v. Independent Sch. Dist. No. 622, 288 Minn. 196, 214, 179 N.W.2d 146, 156 (1970) (holding when sectarian school is involved, indirect and incidental benefits to school do not violate Minnesota Constitution's establishment clauses).
If the first question is answered in the affirmative, then public aid to the school does not violate the state's establishment clauses. Hence, a legislative enactment like the PSEOA may be constitutional as applied to Bethel even if Bethel is pervasively sectarian. See Americans United, 288 Minn. at 214-15, 179 N.W.2d at 156; Mammenga I, 485 N.W.2d at 310.
We conclude the PSEOA benefits to Bethel are indirect and incidental as a matter of law for several reasons. First, the *139 PSEOA is designed to benefit high school students, not Bethel, by providing an opportunity for Minnesota's high school students to take nonsectarian courses at participating colleges. Second, participating students may attend either public or private universities and colleges. Consequently, Bethel has no control over the number of students who select Bethel, and reimbursement is provided only for PSEOA students enrolled in nonsectarian courses. See Minn.Stat. § 123.3514, subd. 2.
Third, the state reimbursed Bethel for only 42% of the actual costs for tuition, textbooks, materials and fees for PSEOA students in the 1991-92 school year. Finally, Bethel separates PSEOA reimbursements from its other funds to ensure the state benefits are used for only nonsectarian purposes. Under these circumstances, we agree with the district court and hold that, as a matter of law, PSEOA benefits to Bethel are indirect and incidental. Accordingly, the PSEOA does not violate the Minnesota Constitution's establishment clauses as applied to Bethel.
MFT and Peterson contend that to determine whether the PSEOA is constitutional as applied to Bethel, the district court must make findings about Bethel's sectarian nature. MFT and Peterson argue, in other words, that if a college like Bethel is pervasively sectarian, it may not receive any state funds without violating the Minnesota establishment clauses. We disagree. Read together, Americans United and Mammenga I advance the rule of law that even if a college is pervasively sectarian, state funds may be accorded it, if the benefit to the college is indirect and incidental. Americans United, 288 Minn. at 214-15, 179 N.W.2d at 156; Mammenga I, 485 N.W.2d at 310; see also Witters v. Washington Dept. of Servs. for the Blind, 474 U.S. 481, 488, 106 S. Ct. 748, 752, 88 L. Ed. 2d 846 (1986) (federal establishment clause not violated if public funds flow to religious institutions because of aid recipient's genuinely independent and private choice). In this case we conclude PSEOA benefits to Bethel are incidental and indirect and therefore MFT and Peterson's contention fails.[3]
MFT and Peterson's reliance on School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 105 S. Ct. 3216, 87 L. Ed. 2d 267 (1985) is misplaced. Unlike the PSEOA, the "Shared Time" and "Community Education" programs in Ball were provided only to nonpublic school students. Id. at 378, 105 S.Ct. at 3219. Hence, Ball is distinguishable on the grounds (1) the funds went directly to sectarian schools to benefit nonpublic school students, and (2) the program subsidized the sectarian schools by reducing a portion of their need to teach secular subjects.
MFT and Peterson argue the Minnesota Constitution's religion clauses are stricter than their federal counterpart and therefore the PSEOA as applied to Bethel violates the Minnesota Constitution. MFT and Peterson, however, mischaracterize the supreme court's statement in State v. Hershberger, 462 N.W.2d 393 (Minn.1990). The Hershberger court said that Minn. Const. art I, § 16 "is of a distinctively stronger character than the federal counterpart." Id. at 397. The court, however, was not referring to the specific clause at issue in this case. It was instead discussing the general free exercise and establishment components of the Minnesota Constitution. Id. Hence, MFT and Peterson's reliance on the statement in Hershberger is unpersuasive.
DECISION
The PSEOA does not violate the Minnesota Constitution's establishment clauses as applied to Bethel College.
Affirmed.
NOTES
[1] The legislature amended the formula for reimbursing a post-secondary institution in 1991, see 1991 Minn.Laws ch. 265, art. 9, § 38, and also in 1992, see 1992 Minn.Laws ch. 499, art. 9, § 7. This opinion only examines the 1990 version of the statute.
[2] Minn. Const. art. I, § 16 provides in relevant part,
nor shall any money be drawn from the treasury for the benefit of any religious societies or religious or theological seminaries.
Minn. Const. art. XIII, § 2 provides:
In no case shall any public money or property be appropriated or used for the support of schools wherein the distinctive doctrines, creeds or tenets of any particular Christian or other religious sect are promulgated or taught.
[3] MFT and Peterson claim the district court erred by holding Bethel's sectarian nature is "irrelevant" to the constitutional analysis. Neither Bethel nor the district court embraced this position however. Instead, the district court concluded that because PSEOA funds to Bethel did not benefit or support religion the second step of the analysis determining whether Bethel was pervasively sectarian was unnecessary. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625249/ | 689 S.W.2d 443 (1984)
Robert Joe CASTILLO, Appellant,
v.
The STATE of Texas, Appellee.
No. 014-84.
Court of Criminal Appeals of Texas, En Banc.
October 24, 1985.
On Rehearing April 3, 1985.
*444 David R. Weiner (court appointed), San Antonio, for appellant.
Bill M. White, Former Dist. Atty., and Sam D. Millsap, Jr., Dist. Atty., Charles Estee, Richard H. Fox, Monica Donahue and Miguel Martinez, Alan E. Battaglia, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.
Before the Court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
ODOM, Judge.
Appellant was convicted of arson. The Court of Appeals reversed the conviction upon finding the trial court erroneously overruled appellant's motion to quash. Castillo v. State (Court of Appeals-San Antonio). The State brought petition for review by this Court on two issues: (1) whether the Court of Appeals correctly decided the ground of error, and (2) whether the Court of Appeals had jurisdiction of the case. Review was granted on both issues.
We first address the jurisdictional issue. The State argues the Court of Appeals lacked jurisdiction because the notice of appeal was late. The record reflects that appellant was sentenced on August 20, 1981. At that time Art. 44.08, V.A.C.C.P., required notice of appeal be given within 10 days of sentencing. The record reflects that appellant was so informed in open court at the time of sentencing and that he informed the court, through counsel, that he did not want to appeal. The record before this Court does not reflect that notice of appeal was ever given. The State's brief recites that the record reflects oral notice of appeal was given on September 4, 1981, but the record does not contain the page referred to by the State. Appellant apparently agrees that notice of appeal was late, because he argues the Court of Appeals impliedly found good cause for late notice of appeal.
We will address appellant's argument of good cause in a moment, but we first find there was no timely notice of appeal, first because the record reflects no notice of appeal whatsoever, and alternatively, assuming arguendo that notice of appeal was given on September 4, such notice of appeal would have been 15 days after sentencing, five days after expiration of the time allowed for notice of appeal in effect at the time of sentencing and at the time of expiration of the permitted period for giving notice of appeal.
Appellant argues the Court of Appeals found good cause for late notice of appeal under Art. 44.08(e), V.A.C.C.P. That provision, however, became effective September 1, 1981, which was after the time for giving notice of appeal in this case had expired. Specifically, Art. 44.08(e), provides:
"For good cause shown, the court of appeals may permit the giving of notice *445 of appeal after the expiration of such 15 days."
This amendment was part of the act giving criminal appellate jurisdiction to the courts of appeals. Acts 1981, 67th Leg., ch. 291. Also, as part of that amendment, the time for giving notice of appeal was extended to 15 days, measured from sentencing or overruling of motion for new trial. Art. 44.08(b) and (c), supra. The amendment did not revive a right to appeal that had already expired. To hold otherwise would mean the courts of appeals would have the authority at this date to find good cause for late notice of appeal in any final conviction no matter how long ago the conviction became final. We do not believe the legislature intended such a result. We hold the authority granted by Art. 44.08(e), supra, may be exercised only in those cases in which "the expiration of such 15 days," as referred to in the statute, was an event occurring on or after the effective date of the act, i.e., September 1, 1981. See Barnes v. State, 644 S.W.2d 1 (Tex.Cr.App.1982); McCarty v. State, 557 S.W.2d 295 (Tex.Cr.App.1977); Ex parte Young, 517 S.W.2d 288 (Tex.Cr.App.1974). Accordingly, the Court of Appeals was without authority to act under Art. 44.08(e) in this case and we will not presume that it did so. Appellant's argument is without merit.
Timely notice of appeal is jurisdictional. E.g., Pittman v. State, 546 S.W.2d 623 (Tex.Cr.App.1977); McIntosh v. State, 534 S.W.2d 143 (Tex.Cr.App.1976); Newton v. State, 482 S.W.2d 215 (Tex.Cr.App.1972). The record does not reflect timely notice of appeal. The appeal therefore must be dismissed.
The judgment of the Court of Appeals is reversed and the cause remanded with directions to dismiss the appeal.
OPINION ON REHEARING
ONION, Presiding Judge.
Appellant's plea of guilty before the court to the second count of the indictment charging arson resulted in conviction. Punishment, in light of allegation and proof of a prior felony conviction and a plea bargain, was assessed by the court at 20 years' imprisonment.
On appeal the appellant urged the "trial court erred in overruling appellant's motion to quash the indictment on the failure to allege the manner and means by which the offense was committed." The San Antonio Court of Appeals concluded it had jurisdiction of the appeal of the ruling on the pre-trial motion to quash under the 1977 amendment to Article 44.02, V.A.C.C.P. A panel of the court reversed the conviction, finding the trial court erred in overruling the motion to quash as the indictment failed to give adequate notice of charges against the appellant by not stating the manner in which the alleged fire had been set. The panel wrote:
"We also note that the term `starting a fire' is nowhere defined in the Texas Penal Code. The omission from the indictment in the instant case of the facts by which the prosecution would establish arson renders the instrument subject to a timely motion to quash. We therefore reverse the trial court and order the prosecution dismissed."
The court en banc entertained State's motion for rehearing and overruled the same without written opinion. Associate Justice Cantu dissented with written opinion, arguing the manner and means by which the fire started was essentially evidentiary in nature and need not be pleaded in the indictment. Chief Justice Cadena and Justice Dial joined in the dissent. See Castillo v. State (Tex.App. [4th Dist.] 1983, No. 4-81-00261-CR).
We granted the State's petition for discretionary review to determine (1) whether the Court of Appeals correctly decided appellant's sole ground of error and (2) whether the Court of Appeals had jurisdiction by virtue of a notice of appeal.
On original submission this Court found timely notice of appeal had not been given, that such timely notice was jurisdictional and the appeal had to be dismissed. The *446 judgment of the Court of Appeals was reversed.
On the Court's own motion for rehearing we have concluded, although not without difficulty, that belated notice of appeal for good cause was implicitly approved by the Court of Appeals. See Article 44.08(e), V.A.C.C.P.[1] We now consider that court's holding the trial court erred in overruling the motion to quash the indictment.
Appellant was charged under V.T.C.A., Penal Code, § 28.02, as amended in 1979 (Acts 1979, 66th Leg., p. 1216, ch. 588, § 2, eff. Sept. 1, 1979).
Said § 28.02 reads in pertinent part:
"(a) A person commits an offense if he starts a fire or causes an explosion with intent to destroy or damage any building, habitation, or vehicle:
"(1) knowing that it is within the limits of an incorporated city or town;
"(2) * * *
"(3) * * *
"(4) knowing that it is located on property belonging to another;
"(5) * * *
"(6) * * *
"(b) It is a defense to prosecution under Subsection (a)(1) of this section that prior to starting the fire or causing the explosion, the actor obtained a permit or other written authorization granted in accordance with a city ordinance, if any, regulating fires and explosions."
Omitting the formal parts, the indictment alleged in the first count that
"on or about the 3rd day of January, A.D., 1981, Robert Joe Castillo did then and there knowingly start a fire with intent to destroy or damage a habitation knowing that it was located on property belonging to another, namely: Alicia Mae Rodriquez; ...."
The second count alleged in part:
"that on or about the 3rd day of January... Robert Joe Castillo did then and there knowingly start a fire with intent to destroy or damage a habitation knowing that it was within the City of San Antonio, Bexar County, Texas; ...."
The third paragraph (not a count) alleged a prior 1973 murder conviction for enhancement of punishment.
Appellant filed a pre-trial motion to quash the indictment alleging, inter alia,
"IV
"Because the same fails to set out or inform the Defendant how, in what manner and means and ways the alleged offense was committed in sufficient detail in order that he may prepare a defense or defend himself or enter a plea and hence, the same violates the due process provisions of the United States and Texas Constitution and Bill of Rights, the Texas Penal Code and Code of Criminal Procedure.
"* * *
"VII
"Because the same fails to show or allege how the allege (sic) offense was committed and hence, deprives the defendant of proper notice."
The motion did not further elaborate on its contentions.
Over two months later the court entertained all pre-trial motions. The motion to quash was summarily overruled. The appellant offered no argument nor cited any authorities.
Thereafter a plea bargain was entered into by the parties. The State abandoned the first count of the indictment, and the appellant entered a guilty plea to the second count and a plea of "true" to the third paragraph alleging a prior felony conviction for enhancement of punishment.
During the admonishment the court inquired:
"Mr. Adams (Defense Counsel), are you satisfied that Mr. Castillo has a factual *447 as well as a rational understanding of the charges against him?
"MR. ADAMS: Yes, Your Honor."
On appeal different counsel for the appellant (appointed by the trial court) urged the motion to quash had been improperly overruled. He relied upon the quoted paragraphs IV and VII in the motion to quash and narrowed the contention to the fact the indictment did not allege the manner and means of starting the fire relying upon Cruise v. State, 587 S.W.2d 403 (Tex.Cr. App.1979); Jeffers v. State, 646 S.W.2d 185 (Tex.Cr.App.1983), etc.
Article I, § 10 of the Texas Constitution, states:
"[In all criminal prosecutions the accused] shall have the right to demand the nature and cause of the accusation against him and to have a copy thereof."
The Legislature has also sought to provide guidance as to the adequacy of notice through the enactment of Chapter 21 of the Code of Criminal Procedure. Article 21.02(7) provides:
"7. The offense must be set forth in plain and intelligible words."
Article 21.03, V.A.C.C.P., states:
"Everything should be stated in an indictment which is necessary to be proved."
Article 21.04, V.A.C.C.P., states:
"The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense." See also Article 21.11, V.A.C.C.P.
Appellant's contentions were timely raised by motion to quash or set aside the indictment prior to trial, and therefore the fundamental constitutional protections of adequate notice and due process are involved. McManus v. State, 591 S.W.2d 505 (Tex.Cr.App.1979); Jeffers v. State, 646 S.W.2d 185 (Tex.Cr.App.1981). These protections require careful consideration from the perspective of the accused. Haecker v. State, 571 S.W.2d 920 (Tex.Cr.App.1978); Cruise v. State, 587 S.W.2d 403, 404 (Tex. Cr.App.1979); Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App.1977).
When considering a motion to quash the indictment, it is not sufficient to say the defendant knew with what offense he was charged; rather, the question presented is whether the face of the indictment or charging instrument sets forth in plain and intelligible language sufficient information to enable the accused to prepare his defense. Haecker v. State, supra; McManus v. State, supra; Jeffers v. State, supra; Marrs v. State, 647 S.W.2d 286, 289 (Tex. Cr.App.1983); Lewis v. State, 659 S.W.2d 429, 431 (Tex.Cr.App.1983).
The State in the instant case alleged the offense in the second count of the indictment in the terms of the statute. Ordinarily, this is legally sufficient. Burney v. State, 347 S.W.2d 723 (Tex.Cr.App.1961); Bass v. State, 427 S.W.2d 624 (Tex.Cr.App. 1968); Ames v. State, 499 S.W.2d 110 (Tex. Cr.App.1973); Johnson v. State, 541 S.W.2d 619 (Tex.Cr.App.1976); Parr v. State, 575 S.W.2d 522 (Tex.Cr.App.1978); Few v. State, 588 S.W.2d 578 (Tex.Cr.App. 1979); Thomas v. State, 621 S.W.2d 158 (Tex.Cr.App.1980); Marrs v. State, supra.
In Haecker v. State, supra, where an information rather than an indictment was involved, this Court stated:
"In many cases an information will be considered sufficient if it follows the language of the statute. However, this rule applies only where the information is framed under a statute which defines the act constituting the offense in a manner that will inform the accused of the nature of the charge. In other words, if the language of the statute is itself completely descriptive of the offense, and information is sufficient if it follows the statutory language. Lopez v. State, 494 S.W.2d 560 (Tex.Cr.App.1973); Bush v. State, 97 Tex. Crim. 219, 260 S.W. 574 (1923). By the same test, if the language of the statute is not completely descriptive then merely tracking the statutory language would be insufficient."
*448 It has been said that facts or information not necessary to provide notice but rather essentially evidentiary need not be alleged in an indictment because the indictment need not plead the evidence relied upon by the State. Phillips v. State, 597 S.W.2d 929, 935 (Tex.Cr.App.1980).
In Thomas v. State, 621 S.W.2d 158, 161 (Tex.Cr.App.1981) (Opinion on State's Motion for Rehearing), it was written:
"The general rule is that a motion to quash will be allowed if the facts sought are essential to giving notice. However, unless a fact is essential, the indictment need not plead evidence relied on by the State. Smith v. State, 502 S.W.2d 133 (Tex.Cr.App.1973); Cameron v. State, 401 S.W.2d 809 (Tex.Cr.App.1966). Moreover, when a term is defined in the statutes, it need not be further alleged in the indictment. American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974); May v. State, 618 S.W.2d 333 (Tex.Cr.App.1981)."
In the instant case the term "start a fire" as used in the second count of the indictment is not statutorily defined. Thus we are not dealing with a situation as in Thomas v. State, supra, where the terms were statutorily defined and did not go to an act or omission of the accused and the court held the motion to quash was properly denied. Nor is the instant case like Ferguson v. State, 622 S.W.2d 846 (Tex.Cr. App.1980), where the indictment failed to allege which of the three statutory methods of delivery of heroin was relied upon and the court held the motion to quash the indictment was improperly overruled.[2] See also Ellis v. State, 613 S.W.2d 741 (Tex.Cr. App.1981). Cf. Coleman v. State, 643 S.W.2d 124 (Tex.Cr.App.1982); McBrayer v. State, 642 S.W.2d 504 (Tex.Cr.App.1982); and Gorman v. State, 634 S.W.2d 681 (Tex. Cr.App.1981), where in each theft case the court held it was error to overrule a motion to quash the indictment for failure to specify which of the statutorily defined types of appropriation to which the accused resorted. And the instant case is not like Drumm v. State, 560 S.W.2d 944 (Tex.Cr. App.1977), where it was held error for the trial court to have overruled the motion to quash. There the defendant was charged with driving his motor vehicle while his license was suspended under Article 687b, § 24, V.A.C.S. Section 24 provided for five different ways in which the license could have been suspended and by motion to quash the defendant sought a specific allegation as to which subsection of § 24 the State would rely on.
In Haecker v. State, 571 S.W.2d 920 (Tex.Cr.App.1978), the defendant was charged with "knowingly tortur[ing] ... a dog." In his motion to quash the information, the defendant contended that "torture" did not give adequate notice. Even though the term "torture" was statutorily defined in the civil statutes (Article 180, V.A.C.S.), this Court concluded that the language of the statute was not completely descriptive of the act constituting the offense so as to inform the defendant of the nature of the charge.
The instant case is more like Cruise v. State, 587 S.W.2d 403 (Tex.Cr.App.1979). There this Court held that the term "cause bodily injury" in a robbery indictment did not, upon a timely motion to quash, give precise notice of the offense with which Cruise was charged, noting that the term "cause bodily injury" not statutorily defined was susceptible to an almost endless list of possible meanings, and that it would have been impossible for the State to prove the element without also showing the manner in which it was done.
Jeffers v. State, 646 S.W.2d 185 (Tex.Cr. App.1981), involved convictions for gambling promotion. V.T.C.A., Penal Code, § 47.03(a)(2). There Jeffers by pre-trial motions to quash specifically urged the indictments failed to allege facts sufficient to give him notice of the manner and means *449 whereby he received a bet and offer to bet, and thus did not apprise him of the charges with such particularity so as to enable him to prepare a defense.
In Jeffers this Court stated:
"The essence of each of the eight offenses, as alleged in the indictments, was appellant's act in receiving a bet and offer to bet by a named individual. The indictments fail to specify the manner by which appellant received the bets and offers to bet. Such items could have been received a number of ways including: in person, through a third party, over the telephone, at a drop or through the mail. We fail to see in what manner the State sought to prove beyond a reasonable doubt that appellant received bets and offers to bet by an individual, without adducing facts which described how the receipt took place. Appellant's motion to quash entitled him to the allegation of facts sufficient to bar a subsequent prosecution for the same offense and sufficient to give him precise notice of the offense with which he was charged. We conclude the trial court erred in overruling appellant's motion to quash. Under such circumstances the indictments will be dismissed. Brasfield v. State, Tex.Cr.App., 600 S.W.2d 288." (Emphasis supplied.)
It is clear that it was necessary for the prosecution to prove the manner in which the appellant did "start a fire" in order to meet its burden of proof. While allegation of manner and means of "starting a fire" under V.T.C.A., Penal Code, § 28.02, is not a fundamental requisite of charging the offense for purposes of invoking the trial court's jurisdiction, appellant's motion to quash entitled him to the allegations of facts sufficient to bar a subsequent prosecution for the same offense and sufficient to give him precise notice of the offense with which he was charged. Article 27.09, V.A.C.C.P.; American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex. Cr.App.1974); Cruise v. State, supra.
The Court of Appeals was right. The trial court erred in overruling the motion to quash the indictment. Its judgment should be affirmed.
We make these further observations. The indictment simply alleged "habitation." It does not allege the ownership of the structure or vehicle constituting the habitation[3] nor its address or location other than generally within the city limits of San Antonio. While the indictment tracked the statute (V.T.C.A., Penal Code, § 28.02), it is difficult to see how such allegation put the appellant on notice so that he could prepare his defense, or to plead any conviction in bar of further prosecution for the same offense. Although appellant narrowed his contention on appeal, it appears that his motion to quash was broad enough to encompass this deficiency in the indictment.
Still further, the State now candidly admits in this Court that the indictment omitted the word "incorporated" in the second count upon which conviction was had. The second count alleged "knowing that it was within the City of San Antonio, Bexar County, Texas" in attempted compliance with the statutory language "knowing that it is within the limits of an incorporated city or town." (Emphasis supplied.) The State argues the trial court could take judicial notice of the fact San Antonio is an incorporated city. The question does not involve proof so much as necessary allegations in the indictment. In view of our disposition of this cause, we need not decide whether fundamental error is presented by this omission.
The judgment of the Court of Appeals is affirmed. The prosecution is ordered dismissed.
WHITE, J., not participating.
NOTES
[1] Our original opinion on State's petition for discretionary review is hereby withdrawn.
[2] In Queen v. State, 662 S.W.2d 338 (Tex.Cr.App. 1983), it was held that the indictment alleging that the defendant delivered marihuana was sufficient to put the defendant on notice as to what type of delivery the State was relying upon, since it clearly alleged that the defendant delivered marihuana by utilizing both actual and constructive transfer.
[3] V.T.C.A., Penal Code, § 30.01 (Definitions), provides in part:
"In this chapter:
"(1) `Habitation' means a structure or vehicle that is adapted for the overnight accommodation of persons, and includes:
"(A) each separately secured or occupied portion of the structure or vehicle; and
"(B) each structure appurtenant to or connected with the structure or vehicle...." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/92834/ | 136 U.S. 436 (1890)
IN RE KEMMLER, Petitioner.
No. 13. Original.
Supreme Court of United States.
Argued May 20, 1890.
Decided May 23, 1890.
ORIGINAL.
*438 Mr. Roger M. Sherman for the petitioner.
Mr. Charles F. Tabor, Attorney General of the State of New York, opposing.
MR. CHIEF JUSTICE FULLER delivered the opinion of the court:
This is an application for a writ of error to bring up for review a judgment of the Supreme Court of the State of New York, affirming an order of the county judge of Cayuga County, remanding the relator to the custody of the warden of the State Prison at Auburn, upon a hearing upon habeas corpus. The judgment of the Supreme Court was entered upon a judgment of the Court of Appeals of the State of New York, affirming a previous order of the Supreme Court. The application was originally presented to Mr. Justice Blatchford, and, upon his suggestion, was permitted to be made in open court, and has been heard upon full argument.
A writ of error to the highest court of a State is not allowed as of right, and ought not to be sent out when the court in session, after hearing, is of opinion that it is apparent upon the face of the record that the issue of the writ could only result in the affirmance of the judgment. Spies v. Illinois, 123 U.S. 131.
The writ of habeas corpus was allowed on the 11th day of June, 1889, and made returnable before the county judge of Cayuga County. The petition was filed by one Hatch, and stated "that William Kemmler, otherwise called John Hort, is imprisoned or restrained in his liberty, at Auburn State Prison, in the city of Auburn, county of Cayuga, State of New York, by Charles F. Durston, agent and warden of Auburn State Prison, having charge thereof. That he has not been committed and is not detained by virtue of any judgment, *439 decree, final order or process issued by a court or judge of the United States, in a case where such courts or judges have exclusive jurisdiction under the laws of the United States, or have acquired exclusive jurisdiction by the commencement of legal proceedings in such a court; nor is he committed or detained by virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction, or the final order of such a tribunal made in the special proceedings instituted for any cause except to punish him for contempt; or by virtue of an execution or other process issued upon such a judgment, decree or final order. That the cause or pretence of the imprisonment or restraint of said William Kemmler, otherwise called John Hort, according to the best knowledge and belief of your petitioner, is that he was indicted by a grand jury of Erie County, for murder in the first degree; that he was tried therefor at a Court of Oyer and Terminer of Erie County, and found guilty thereof by the verdict of a jury on the 10th day of May, 1889; that thereafter and on the 14th day of May, 1889, he was arraigned in said Court of Oyer and Terminer for sentence; that, contrary to the constitution of the State of New York and of the United States, and contrary to his objection and exception, duly and timely taken in due form of law, he was sentenced to undergo a cruel and unusual punishment, as appears by a copy of the pretended judgment, warrant or mandate hereto annexed and made a part of this petition and marked Exhibit `A' by virtue of which such imprisonment or restraint is claimed to be made; that he is deprived of liberty and threatened with deprivation of life without due process of law, contrary to the constitutions of the State of New York and of the United States, and contrary to his objection and exception thereto, duly and timely taken. The imprisonment is stated to be illegal because it is contrary to the provisions of each of said constitutions."
The warden of the Auburn State Prison made the following return:
"First. That I am the duly appointed and acting Warden and Agent of the Auburn State Prison, and on the said 11th day of June, 1889, and before the said writ of habeas corpus *440 was served upon and came to me, the said William Kemmler, otherwise called John Hort, was and now is in my custody and detained by me in the State Prison at Auburn, in the State of New York, under and by virtue of a judgment of the Court of Oyer and Terminer of the State of New York, held in and for the county of Erie, on the 14th day of May, 1889, duly convicting the said William Kemmler, otherwise called John Hort, of murder in the first degree. A true copy of the judgment roll of the aforesaid conviction is hereto attached as a part hereof, and marked Exhibit `A.'
"And said William Kemmler, otherwise called John Hort, is also detained in my custody as such Warden and Agent under and by virtue of a warrant signed by the Hon. Henry A. Childs, the Justice of the Supreme Court before whom the said William Kemmler, otherwise called John Hort, was, as aforesaid, duly tried and convicted, and which said warrant was duly issued in pursuance of the aforesaid conviction, and in compliance with the provisions of the Code of Criminal Procedure, relating thereto, a copy of which said warrant is hereto annexed as a part hereof, and marked Exhibit `B.'
"Second. And I, the said Charles F. Durston, Agent and Warden of Auburn State Prison, do make a further return and allege as I am advised and verily believe to be true, that the said William Kemmler, otherwise called John Hort, was not sentenced as hereinbefore set forth, to undergo a cruel and unusual punishment, contrary to the provisions of the constitution of the State of New York and the Constitution of the United States.
"And I do further allege that the said imprisonment and restraint of the said William Kemmler, otherwise called John Hort, and the deprivation of his liberty and the threatened deprivation of life, are not without due process of law and are not contrary to the provisions of the constitution of the State of New York or the Constitution of the United States, as alleged in the petition upon which said writ of habeas corpus was granted.
"I do further allege, as I am advised, that the said judgment of conviction hereinbefore set forth, and the aforesaid *441 warrant and the punishment and deprivation of liberty and the threatened deprivation of life of the said William Kemmler, otherwise called John Hort, thereunder, are fully warranted by the provisions of chapter 489 of the Laws of 1888, which is a valid enactment of the legislature of the State of New York, and it is not in conflict with or in violation of the provisions of the constitution of the State of New York or the Constitution of the United States.
"And I hold the said William Kemmler, otherwise called John Hort, under and by virtue of no other authority than as hereinbefore set forth."
Copies of the indictment of Kemmler, otherwise called Hort, for the murder of Matilda Zeigler, otherwise called Matilda Hort; the judgment and sentence of the court; and the warrant to the warden to execute the sentence, were attached to the petition and return. The conclusion of the warrant, pursuing the sentence, was in these words: "Now, therefore, you are hereby ordered, commanded and required to execute the said sentence upon him, the said William Kemmler, otherwise called John Hort, upon some day within the week commencing on Monday, the 24th day of June, in the year of our Lord one thousand eight hundred and eighty-nine, and within the walls of Auburn State Prison, or within the yard or enclosure adjoining thereto, by then and there causing to pass through the body of him, the said William Kemmler, otherwise called John Hort, a current of electricity of sufficient intensity to cause death, and that the application of such current of electricity be continued until he, the said William Kemmler, otherwise called John Hort, be dead."
Upon the return of the writ before the county judge, counsel for the petitioner offered to prove that the infliction of death by the application of electricity as directed "is a cruel and unusual punishment, within the meaning of the Constitution, and that it cannot, therefore, be lawfully inflicted, and to establish the facts upon which the court can pass, as to the character of the penalty. The Attorney General objected to the taking of testimony as to the constitutionality of this law, on the ground that the court has no authority to take such *442 proof. The objection was thereupon overruled, and the Attorney General excepted." A voluminous mass of evidence was then taken as to the effect of electricity as an agent of death. And upon that evidence it was argued that the punishment in that form was cruel and unusual within the inhibition of the constitutions of the United States and of the State of New York, and that therefore the act in question was unconstitutional.
The county judge observed that the "Constitution of the United States and that of the State of New York, in language almost identical, provide against cruel and inhuman punishment, but it may be remarked, in passing, that with the former we have no present concern, as the prohibition therein contained has no reference to punishments inflicted in state courts for crimes against the State, but is addressed solely to the national government and operates as a restriction on its power." He held that the presumption of constitutionality had not been overcome by the prisoner, because he had not "made it appear by proofs or otherwise, beyond doubt, that the statute of 1888 in regard to the infliction of the death penalty provides a cruel and unusual, and therefore unconstitutional, punishment, and that a force of electricity to kill any human subject with celerity and certainty, when scientifically applied, cannot be generated." He, therefore, made an order dismissing the writ of habeas corpus, and remanding the relator to the custody of the respondent. From this order an appeal was taken to the Supreme Court, which affirmed the judgment of the county judge. The Supreme Court was of opinion, People &c. v. Durston, Warden, &c., 55 Hun, 64, that it was not competent to support the contention of the relator by proofs aliunde the statute; that there was nothing in the constitution of the government or in the nature of things giving any color to the proposition that, upon a mere question of fact involved in legislation, the judgment of a court is superior to that of the legislature itself, nor was there any authority for the proposition that in respect to such questions, relating either to the manner or the matter of legislation, the decision of the legislature could be reviewed by the *443 court; and that the presumption that the legislature had ascertained the facts necessary to determine that death by the mode prescribed was not a cruel punishment, was conclusive upon the court. And Dwight, J., delivering the opinion, also said: "We have read with much interest the evidence returned to the county judge, and we agree with him that the burden of the proof is not successfully borne by the relator. On the contrary, we think that the evidence is clearly in favor of the conclusion that it is within easy reach of electrical science at this day to so generate and apply to the person of the convict a current of electricity of such known and sufficient force as certainly to produce instantaneous, and, therefore, painless, death."
From this judgment of the Supreme Court an appeal was prosecuted to the Court of Appeals, and the order appealed from was affirmed. It was said for the court by O'Brien, J.: "The only question involved in this appeal is whether this enactment is in conflict with the provision of the state constitution which forbids the infliction of cruel and unusual punishment... . If it cannot be made to appear that a law is in conflict with the constitution, by argument deduced from the language of the law itself or from matters of which a court can take judicial notice, then the act must stand. The testimony of expert or other witnesses is not admissible to show that in carrying out a law enacted by the legislature some provision of the constitution may possibly be violated." The determination of the legislature that the use of electricity as an agency for producing death constituted a more humane method of executing the judgment of the court in capital cases, was held conclusive. The opinion concludes as follows: "We have examined this testimony and can find but little in it to warrant the belief that this new mode of execution is cruel, within the meaning of the constitution, though it is certainly unusual. On the contrary, we agree with the court below that it removes every reasonable doubt that the application of electricity to the vital parts of the human body, under such conditions and in the manner contemplated by the statute, must result in instantaneous, and consequently in *444 painless, death." At the same term of the Court of Appeals the appeal of the relator from the judgment on the indictment against him was heard, and that judgment affirmed. Among other points made upon that appeal was this, that the sentence imposed was illegal and unconstitutional, as being a cruel and unusual punishment, but the court decided, as in the case of the appeal from the order under consideration here, that the position was untenable, and that the act was not unconstitutional because of the new mode adopted to bring about death.
We find, then, the law held constitutional by the court of Oyer and Terminer in rendering the original judgment; by the Supreme Court and the Court of Appeals in affirming it; by the county judge in the proceedings upon the writ of habeas corpus; by the Supreme Court in affirming the order of the county judge; and by the Court of Appeals in affirming that judgment of the Supreme Court.
It appears that the first step which led to the enactment of the law was a statement contained in the annual message of the governor of the State of New York, transmitted to the legislature January 6, 1885, as follows: "The present mode of executing criminals by hanging has come down to us from the dark ages, and it may well be questioned whether the science of the present day cannot provide a means for taking the life of such as are condemned to die in a less barbarous manner. I commend this suggestion to the consideration of the legislature." The legislature accordingly appointed a commission to investigate and report "the most humane and practical method known to modern science of carrying into effect the sentence of death in capital cases." This commission reported in favor of execution by electricity, and accompanied their report by a bill which was enacted and became chapter 489 of the Laws of 1888. Laws of New York, 1888, 778. Among other changes, section 505 of the Code of Criminal Procedure of New York was amended so as to read as follows: "§ 505. The punishment of death must, in every case, be inflicted by causing to pass through the body of the convict a current of electricity of sufficient intensity to cause death, and the application of such current must be continued *445 until such convict is dead." Various other amendments were made, not necessary to be considered here.
Sections 10, 11 and 12 of the act are as follows:
"§ 10. Nothing contained in any provision of this act applies to a crime committed at any time before the day when this act takes effect. Such crime must be punished according to the provisions of law existing when it is committed, in the same manner as if this act had not been passed; and the provisions of law for the infliction of the penalty of death upon convicted criminals, in existence on the day prior to the passage of this act, are continued in existence and applicable to all crimes punishable by death, which have been or may be committed before the time when this act takes effect. A crime punishable by death committed after the beginning of the day when this act takes effect, must be punished according to the provisions of this act, and not otherwise.
"§ 11. All acts and parts of acts inconsistent with the provisions of this act are hereby repealed.
"§ 12. This act shall take effect on the first day of January, one thousand eight hundred and eighty-nine, and shall apply to all convictions for crimes punishable by death, committed on or after that date."
Kemmler was indicted for and convicted of a murder committed on the 29th day of March, 1889, and therefore came within the statute. The inhibition of the Federal Constitution upon the passage of ex post facto laws has no application.
Section 5 of article 1, of the constitution of the State of New York, provides that "excessive bail shall not be required, nor excessive fines imposed, nor shall cruel and unusual punishments be inflicted, nor shall witnesses be unreasonably detained." The Eighth Amendment to the Federal Constitution reads thus: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." By the Fourteenth Amendment it is provided that: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities *446 of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." It is not contended, as it could not be, that the Eighth Amendment was intended to apply to the States, but it is urged that the provision of the Fourteenth Amendment, which forbids a State to make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, is a prohibition on the State from the imposition of cruel and unusual punishments, and that such punishments are also prohibited by inclusion in the term "due process of law."
The provision in reference to cruel and unusual punishments was taken from the well-known act of Parliament of 1688, entitled "An act declaring the rights and liberties of the subject, and settling the succession of the crown," in which, after rehearsing various grounds of grievance, and among others, that "excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects; and excessive fines have been imposed; and illegal and cruel punishments inflicted," it is declared that "excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."[1] Stat. 1 W. & M. c. 2. This Declaration of Rights had reference to the acts of the executive and judicial departments of the government of England; but the language in question as used in the constitution of the State of New York was intended particularly to operate upon the legislature of the State, to whose control the punishment of crime was almost wholly confided. So that, if the punishment prescribed for an offence against the laws of the State were manifestly cruel and unusual, as burning at the stake, crucifixion, breaking on the wheel, or the like, it would be the duty of the courts to adjudge such penalties to be within the constitutional prohibition. And we think *447 this equally true of the Eighth Amendment, in its application to Congress.
In Wilkerson v. Utah, 99 U.S. 130, 135, Mr. Justice Clifford, in delivering the opinion of the court, referring to Blackstone, said: "Difficulty would attend the effort to define with exactness the extent of the constitutional provision, which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture, such as those mentioned by the commentator referred to, and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution." Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life.
The courts of New York held that the mode adopted in this instance might be said to be unusual because it was new, but that it could not be assumed to be cruel in the light of that common knowledge which has stamped certain punishments as such; that it was for the legislature to say in what manner sentence of death should be executed; that this act was passed in the effort to devise a more humane method of reaching the result; that the courts were bound to presume that the legislature was possessed of the facts upon which it took action; and that by evidence taken aliunde the statute that presumption could not be overthrown. They went further, and expressed the opinion that upon the evidence the legislature had attained by the act the object had in view in its passage.
The decision of the state courts sustaining the validity of the act under the state constitution is not reëxaminable here, nor was that decision against any title, right, privilege, or immunity specially set up or claimed by the petitioner under the Constitution of the United States.
Treating it as involving an adjudication that the statute was not repugnant to the Federal Constitution, that conclusion was so plainly right that we should not be justified in allowing *448 the writ upon the ground that error might have supervened therein.
The Fourteenth Amendment did not radically change the whole theory of the relations of the state and Federal governments to each other, and of both governments to the people. The same person may be at the same time a citizen of the United States and a citizen of a State. Protection to life, liberty and property rests primarily, with the States, and the amendment furnishes an additional guaranty against any encroachment by the States upon those fundamental rights which belong to citizenship, and which the state governments were created to secure. The privileges and immunities of citizens of the United States, as distinguished from the privileges and immunities of citizens of the States, are indeed protected by it; but those are privileges and immunities arising out of the nature and essential character of the national government, and granted or secured by the Constitution of the United States. United States v. Cruikshank, 92 U.S. 542; Slaughterhouse Cases, 16 Wall. 36.
In Hurtado v. California, 110 U.S. 516, 534, it is pointed out by Mr. Justice Matthews, speaking for the court, that the words "due process of law," as used in the Fifth Amendment, cannot be regarded as superfluous, and held to include the matters specifically enumerated in that article, and that when the same phrase was employed in the Fourteenth Amendment it was used in the same sense and with no greater extent.
As due process of law in the Fifth Amendment referred to that law of the land which derives its authority from the legislative powers conferred on Congress by the Constitution of the United States, exercised within the limits therein prescribed, and interpreted according to the principles of the common law, so, in the Fourteenth Amendment, the same words refer to that law of the land in each State, which derives its authority from the inherent and reserved powers of the State, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions. Undoubtedly the amendment forbids any arbitrary deprivation of life, liberty, or *449 property, and secures equal protection to all under like circumstances in the enjoyment of their rights; and, in the administration of criminal justice, requires that no different or higher punishment shall be imposed upon one than is imposed upon all for like offences. But it was not designed to interfere with the power of the State to protect the lives, liberties and property of its citizens, and to promote their health, peace, morals, education and good order. Barbier v. Connolly, 113 U.S. 27, 31.
The enactment of this statute was in itself within the legitimate sphere of the legislative power of the State, and in the observance of those general rules prescribed by our systems of jurisprudence; and the legislature of the State of New York determined that it did not inflict cruel and unusual punishment, and its courts have sustained that determination. We cannot perceive that the State has thereby abridged the privileges or, immunities of the petitioner, or deprived him of due process of law.
In order to reverse the judgment of the highest court of the State of New York, we should be compelled to hold that it had committed an error so gross as to amount in law to a denial by the State of due process of law to one accused of crime, or of some right secured to him by the Constitution of the United States. We have no hesitation in saying that this we cannot do upon the record before us.
The application for a writ of error is
Denied.
NOTES
[1] Note by the Court. In the "Body of the Liberties of the Massachusetts Colony in New England," of 1641, this language is used: "For bodilie punishments we allow amongst us none that are inhumane, Barbarous or cruel." Colonial Laws of Massachusetts (1889), p. 43. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/92688/ | 133 U.S. 529 (1890)
LINCOLN COUNTY
v.
LUNING.
No. 1274.
Supreme Court of United States.
Submitted January 13, 1890.
Decided March 3, 1890.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEVADA.
Mr. H.F. Bartine for plaintiff in error.
Mr. Abraham Clark Freeman for defendant in error.
MR. JUSTICE BREWER delivered the opinion of the court.
This is an action on bonds and coupons. Judgment was rendered against the county and it alleges error. The primary *530 question is as to the jurisdiction of the Circuit Court. This jurisdiction is challenged on two grounds. First, it is claimed that because the county is an integral part of the State it could not, under the Eleventh Amendment of the Federal Constitution be sued in the Circuit Court; and, secondly, inasmuch as the act under which the bonds were issued provided for litigation concerning the same, and named a court of the State in which such litigation could be had, that such jurisdiction was exclusive and prevented suit in the Circuit Court.
With regard to the first objection, it may be observed that the records of this court for the last thirty years are full of suits against counties, and it would seem as though by general consent the jurisdiction of the Federal courts in such suits had become established. But irrespective of this general acquiescence, the jurisdiction of the Circuit courts is beyond question. The Eleventh Amendment limits the jurisdiction only as to suits against a State. It was said by Chief Justice Marshall, in Osborn v. The Bank of the United States, 9 Wheat. 738, 857, that "the Eleventh Amendment, which restrains the jurisdiction granted by the Constitution over suits against States, is of necessity limited to those suits in which the State is a party on the record."
While that statement was held by this court in the case of In re Ayers, 123 U.S. 443, to be too narrow, yet by that decision the jurisdiction was limited only in respect to those cases in which the State is a real, if not a nominal defendant; and while the county is territorially a part of the State, yet politically it is also a corporation created by and with such powers as are given to it by the State. In this respect it is a part of the State only in that remote sense in which any city, town, or other municipal corporation may be said to be a part of the State. Metropolitan Railroad Co. v. District of Columbia, 132 U.S. 1.
The constitution of the State of Nevada explicitly provides for the liability of counties to suit. Article eight is entitled "Municipal and other corporations," and its ten sections contain provisions, some applicable to private and others to both *531 private and municipal corporations. Section five declares that "corporations may sue and be sued in all courts in like manner as individuals." And that this section is not to be limited to private corporations is evident not alone from the generality of its language and from the title of the article, but also from several sections therein in which municipal corporations are expressly named. Thus the second section subjects the property of corporations to taxation with a proviso "that the property of corporations formed for municipal ... purposes may be exempted by law." And section ten expressly recognizes the county as a municipal corporation, for its language is "no county, city, town or other municipal corporation shall become a stockholder," etc. Thus the liability of counties as municipal corporations to suit is declared by the constitution itself. Further the act under which these bonds were issued provided for suits against the county in respect to this indebtedness in one of the courts of the State; and this liability of a county to suit has been affirmed by the Supreme Court of Nevada in the following cases: Waitz v. Ormsby Co., 1 Nevada, 370: Clarke v. Lyon County, 8 Nevada, 181; Floral Springs Water Co. v. Rives, 14 Nevada, 431.
With regard to the other objection the case of Cowles v. Mercer County, 7 Wall. 118, 122, is decisive. In that case the court, by the Chief Justice, expressed its opinion on the very question in these words: "But it was argued that counties in Illinois, by the law of their organization, were exempted from suit elsewhere than in the Circuit courts of the county. And this seems to be the construction given to the statutes concerning counties by the Supreme Court of Illinois. But that court has never decided that a county in Illinois is exempted from liability to suit in national courts. It is unnecessary, therefore, to consider what would be the effect of such a decision. It is enough for this case that we find the board of supervisors to be a corporation authorized to contract for the county. The power to contract with citizens of other States implies liability to suit by citizens of other States, and no statute limitation of suability can defeat a jurisdiction given by the Constitution."
*532 With regard to the objection that the statute under which these bonds were issued contravenes the state constitution, it is enough to refer to the case of Odd Fellows' Bank v. Quillen, 11 Nevada, 109, in which the Supreme Court of the State held the act valid; following in that decision the case of Youngs v. Hall, 9 Nevada, 212.
It is further objected that the complaint was defective in not showing that the bonds and coupons had been presented to the county commissioners and county auditor for allowance and approval, as provided by sections 1950 and 1964-5-6 of the General Statutes of the State. Those sections, referring to claims and accounts, have application only to unliquidated claims and accounts, and do not apply to bonds and coupons. This question was presented in the case of County of Greene v. Daniel, 102 U.S. 187, 194, in which the court observed, speaking of bonds and coupons, that "the claim was, to all intents and purposes, audited by the court when the bonds were issued. The validity and amount of the liability were then definitely fixed, and warrants on the treasury given, payable at a future day."
The remaining question arises on the statute of limitations. By the general limitation law of the State, some of the coupons were barred; but there has been this special legislation in reference to these coupons. The bonds were issued under the funding act of 1873. In 1877 the county was delinquent in its interest, and the legislature passed an act amendatory to the act of 1873. This amendatory act provided for the registering of overdue coupons, and imposed upon the treasurer the duty of thereafter paying the coupons as money came into his possession applicable thereto, in the order of their registration. Statutes of Nevada, 1877, 46.
The coupons, which by the general limitation law would have been barred, were presented, as they fell due, to the treasurer for payment, and payment demanded and refused, because the interest fund was exhausted. Thereupon the treasurer registered them as presented, in accordance with the act of 1877, and from the time of their registration to the commencement of this suit there was no money in the treasury applicable *533 to their payment. This act, providing for registration and for payment in a particular order, was a new provision for the payment of these bonds, which was accepted by the creditor, and created a new right upon which he might rely. It provided, as it were, a special trust fund, to which the coupon holder might, in the order of registration, look for payment, and for payment through which he might safely wait. It amounted to a promise on the part of the county to pay such coupons as were registered, in the order of their registration, as fast as money came into the interest fund; and such promise was by the creditor accepted; and when payment is provided for out of a particular fund to be created by the act of the debtor, he cannot plead the statute of limitations until he shows that that fund has been provided.
The cases of Underhill v. Sonora, 17 California, 173, and Freehill v. Chamberlain, 65 California, 603, are in point. In the former case, the court observes that "the legislative acts then recognized the debt and made provision for its payment. This is enough to withdraw the case from the operation of the statute; it is equivalent to a trust deed by the State setting apart property out of which the money due was to be paid at a given time, if not sooner paid upon a claim acknowledged to be an outstanding debt; and we cannot conceive of any principle of law or justice which would hold the claim to be barred by the statute simply because the creditor waited after this for his money." In the other case it was held that "where a statute provides for the issuing of bonds of a city with interest coupons payable as fast as money should come into the treasury from special sources designated by the act, the statute of limitations does not commence to run against the coupons until the money is received in the treasury in accordance with the terms of the act."
Both of these decisions were rendered before the act of 1877 was passed, and, being in an adjoining State which has always had close relations with the State of Nevada, may well have induced the passage of that act.
These are all the questions presented. We see no error in the rulings in the Circuit Court, and its judgment is therefore
Affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1625328/ | 25 So. 3d 509 (2008)
DANIEL KEITH YORK
v.
MARTHA OWENS YORK.
No. 2070079.
Court of Civil Appeals of Alabama.
February 11, 2008.
Decision Without Published Opinion Dismissed on joint motion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625378/ | 464 So. 2d 404 (1985)
Robert Norwood MITCHELL, III
v.
TRAVELERS INSURANCE COMPANY.
No. CA 84 0067.
Court of Appeal of Louisiana, First Circuit.
February 26, 1985.
*405 Pete Lewis, New Orleans, for plaintiffappellant.
James R. Ryan, John A. Cvejanovich, New Orleans, for defendant-appellee.
Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVINGTON, JJ.
LOTTINGER, Judge.
This is a "slip and fall" case in which the plaintiff, Robert Mitchell, sued the liability insurer for Sunflower Supermarket in Slidell, Louisiana for damages allegedly sustained when plaintiff slipped and fell while shopping in the supermarket. The issue before this court is whether the defendant, after proof by plaintiff that a foreign substance present on the floor of the store caused him to slip and fall, presented sufficient proof to exculpate itself from liability. In addition, we are to decide whether the presence of rice on the floor of a supermarket renders the premises of the supermarket defective for purposes of strict liability under La.Civ.Code art. 2317.
While shopping at the Sunflower Supermarket in Slidell, Louisiana, plaintiff slipped on some rice and fell to the floor, suffering injuries to his back. After the fall, the assistant manager of the store found a pile of rice approximately two feet from where plaintiff was sitting on the floor. The manager also found a punctured bag of rice on the shelf, from which the rice apparently had fallen. Plaintiff was taken away in an ambulance, and the rice was cleaned up by a store clerk.
The trial court dismissed plaintiff's suit after a trial on the merits, ultimately concluding that the defendant had exonerated itself of liability by establishing that regular inspections of the premises were conducted and the floors were regularly swept. Plaintiff appeals this judgment and attacks this conclusion by the trial court as erroneous.
The law is clear that once a person proves that he slipped and fell in a grocery store because of a foreign substance on the floor, the burden shifts to the store owner *406 to exculpate itself from the presumption of negligence which has arisen. Brown v. Winn-Dixie Louisiana, Inc., 452 So. 2d 685 (La.1984).
In the present case, the assistant manager on duty at the time of the accident testified that the store is swept in its entirety at least three times during his nine hour shift. He further testified that the number of sweepings per shift is left up to the particular manager on duty at the time, and sometimes the store is swept five or six times per shift. He also testified that he walks and patrols the store as much as his job will permit. Specifically, he had walked down the aisle which was the site of the accident only fifteen minutes prior to the accident, and there was no rice on the floor.
The fact that the rice was not on the floor fifteen minutes prior to the accident, as observed by the assistant manager, does not, in and of itself, establish the use of adequate protective measures by the store. Brown v. Winn-Dixie Louisiana, Inc., supra. However, when considering this fact in addition to the regularity of the sweeping and the regular patrols, we conclude that the store owner took adequate protective measures to exculpate itself from liability.
Plaintiff also contends that the rice on the floor rendered the premises defective for purposes of strict liability. However, the temporary presence of a foreign substance is not, in and of itself, a defect for purposes of strict liability under La.Civ.Code art. 2317. McKinnie v. Department of Transportation and Development, 426 So. 2d 344 (La.App. 2nd Cir.1983), writ denied 432 So. 2d 266 (La.1983); Naylor v. Louisiana Department of Public Highways, 423 So. 2d 674 (La.App. 1st Cir. 1982), writs denied 429 So. 2d 127, 429 So. 2d 134 (La.1983); Brown v. Winn-Dixie Louisiana, Inc., 417 So. 2d 44 (La.App. 1st Cir.1982), rev'd on other grounds, 452 So. 2d 685 (La.1984). The reasoning behind this rule is that the presence of the foreign substance does not create a vice or a defect inherent in the thing itself. As such, the presence of the rice on the floor of the supermarket did not render the store premises defective, and article 2317 is inapplicable.
Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed at plaintiff-appellant's costs.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625376/ | 689 S.W.2d 952 (1985)
HERITAGE RESOURCES, INC., Appellant,
v.
The ANSCHUTZ CORPORATION, Appellee.
No. 08-84-00258-CV.
Court of Appeals of Texas, El Paso.
May 15, 1985.
Rehearing Denied June 12, 1985.
*953 Terry L. Jacobson, Frank Finn, Schuyler Marshall, Thompson & Knight, Dallas, for appellant.
Charles Tighe, Cotton, Bledsoe, Tighe, Morrow & Dawson, Midland, Richard B. Miller, Jacks C. Nickens, Miller, Keeton, Bristow & Brown, Houston, for appellee.
Before WARD, OSBORN and SCHULTE, JJ.
OPINION
OSBORN, Justice.
This appeal involves parties who entered into a joint venture agreement to develop drilling prospects in West Texas and New Mexico. The dispute developed over ownership rights of a well drilled in Midland County, and following a jury trial, judgment was entered denying recovery to Heritage Resources, Inc. We affirm.
In August, 1981, The Anschutz Corporation and Heritage Resources, Inc. entered into a Joint Venture Agreement whereby Heritage would locate drilling prospects and do the necessary geological and leasing work to make the prospects attractive to drill and Anschutz would provide certain financial support and agree to drill the prospects it approved. Each party would, by fulfilling their obligations under the agreement, earn a participating interest in a designated Prospect Area of Mutual Interest and in any producing wells, with options to sell their interest to third parties.
One prospect developed by Heritage was the "Moonlight South Prospect" in Midland County. It was to be drilled as an Ellenberger test at approximately 13,500 feet and at a cost of about $1,500,000.00 if completed. Heritage had leased approximately 2,250 acres in the prospect area and obtained substantial seismic work, all at a cost of nearly $750,000.00 to Anschutz.
The Joint Venture Agreement in paragraph 4 provides:
As soon as possible after Heritage has performed all necessary enhancement work and determines that a Prospect is ready for sale or possible drilling (as such readiness is further defined below), Heritage shall give written notice of such readiness to Anschutz providing all data, interpretations, maps, other information, and the terms, if any, at which Heritage is then willing to sell its Earned Interest (as defined below) in the Prospect. Readiness of the Prospect shall be in each such case the enhancement of the Prospect geologically to that point at which a reasonably prudent operator in the industry would elect to drill to test the Prospect. The Prospect shall be deemed ready as of ten days following the receipt by Anschutz of Heritage's original notice of readiness.
On October 25, 1982, Heritage wrote to Anschutz that it was willing to consider the Moonlight South Prospect drillable, subject to three specified conditions. These included obtaining a lease from the Scharbauer family covering Section 27, Block 40, T-1-S, T & P R.R. Co. Survey; obtaining a farmout from Hulen Lemon on the NE/4 of Section 28, Block 40; and obtaining surface acreage from Magnatex at a reasonable price. That letter expressed a desire that *954 Heritage be permitted to "back-in after payout of all acreage, seismic and drilling costs of said initial well for 12.5%." By paying its pro rata cost, Heritage could earn a one-half interest in the prospect.
On December 9, 1982, Anschutz wrote to Heritage to declare the Moonlight South Prospect "ready." Attached were copies of the Scharbauer lease, Lemon farmout and the Magnatex agreement. The letter said the well was to be spudded on or before December 31, 1982. Also attached was an invoice for $362,557.20 for one-half of all acquisition costs incurred by Anschutz up to that time and an Authorization For Expenditure to reflect the drilling and completion costs. The letter said:
If Heritage elects to participate in this prospect as to its "earned interest", then please remit the invoice amount within ten days of your receipt of this letter along with an executed copy of the attached well AFE.
Heritage made no response and did not pay the invoice in order to earn a one-half interest in the Moonlight South Prospect. Anschutz proceeded to drill and complete the well solely at its cost. On February 28, 1983, after the well had been drilled, Heritage wrote Anschutz claiming ownership of a one-half interest in the prospect. Suit was filed on March 14, 1983, seeking to recover an interest in the well and damages. Following a four-week trial, the jury returned its verdict and judgment was entered in favor of Anschutz denying all recovery to Heritage.
Heritage contends in its first point of error that the trial court erred in failing to enter judgment for it because Anschutz breached the Joint Venture Agreement as a matter of law: (1) in declaring the Moonlight South Prospect "ready;" (2) in depriving Heritage of its right to sell its interest within thirty days; (3) in requiring Heritage to elect to participate in the drilling of the initial well within ten days; and (4) in requiring Heritage to pay for its share of acquisition costs within ten days.
In answer to special issues, the jury, among other things: (1) failed to find Anschutz breached the Joint Venture Agreement by declaring the Moonlight South Prospect ready to drill; (3) found Heritage had agreed to call the Moonlight South Prospect drillable by its letter of October 25, 1982, subject only to completion of the conditions set out in the letter; (4) found that by December 9, 1982, Anschutz had reasonably satisfied the conditions set forth in the October 25, 1982, letter from Heritage; (7) failed to find Anschutz breached the Joint Venture Agreement by requesting Heritage to pay its share of the acquisition costs within ten days; (11) found ten days was a reasonable time for Heritage to pay its share of the acquisition costs; and (12) failed to find Anschutz in its letter of December 9, 1982, requested Heritage agree to pay one-half of the estimated cost of the initial well within ten days. By their answers, the jury found for Anschutz and determined there had been no breach of the Joint Venture Agreement by Anschutz in declaring the prospect "ready" and requiring payment from its joint venture for one-half of the acquisition costs within ten days.
But if, as Heritage contends, the agreement was unambiguous, then the rights of the parties should be determined as a matter of law and no issue should have gone to the jury concerning a breach of contract. The question of whether a contract is ambiguous is one of law for the court. Coker v. Coker, 650 S.W.2d 391 (Tex.1983); R & P Enterprises v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517 (Tex.1980). If the instrument is so worded that a court may properly give it a certain or definite legal meaning or interpretation, it is not ambiguous. Coker v. Coker, supra; R & P Enterprises v. LaGuarta, Gavrel & Kirk, Inc., supra. We agree with the parties that the part of the Joint Venture Agreement with regard to declaring the prospect ready is not ambiguous. In such a case the construction of the contract is a question of law for the court, and *955 a jury may not be called upon to construe the legal effect of the agreement. Trinity Universal Insurance Company v. Ponsford Brothers, 423 S.W.2d 571 (Tex.1968); Hervey v. Passero, 648 S.W.2d 344 (Tex. App.El Paso 1983), affirmed in part, reversed in part, 658 S.W.2d 148 (Tex. 1983).
Paragraph 4 of the Joint Venture Agreement provided that Heritage would determine when the prospect was "ready" and would notify Anschutz, and ten days thereafter "[t]he Prospect shall be deemed ready." In October, 1982, Heritage was aware of three requirements that had not been met in order that a reasonably prudent operator would elect to drill to test this prospect. Accordingly, on October 25, 1982, it wrote a conditional letter of readiness. It told its joint venturer that it considered the prospect drillable subject to the three listed conditions. On December 9, 1982, Anschutz replied the conditions had been met, it furnished evidence by sending copies of the additional leases and said the Moonlight South Prospect was ready. At that time nothing remained to be done and Heritage did not reply or advise to the contrary. Heritage's next letter to Anschutz, after the well was completed, identified its letter of October 25, 1982, as a "conditional notice of `readiness'." We agree and hold that on December 9, 1982, the three conditions had been met and ten days thereafter the well was ready, and that as a matter of law the parties by the exchange of letters so agreed and the provisions of paragraph 4 of the Joint Venture Agreement had been met. If there was any fact issue, it was decided favorably to Anschutz by the jury.
Once the prospect was ready to be drilled, we are required to consider the obligations which each joint venturer had to the other. Anschutz told Heritage to pay its one-half of the acquisition costs within ten days if it elected to participate in the prospect. Heritage did not pay. The last two sentences of paragraph 4 of the Joint Venture Agreement state:
If Heritage makes that payment to Anschutz required below, Heritage shall have been deemed to have earned one-half of all such interests in the Prospect Area of Mutual Interest. Heritage shall be entitled to receive from Anschutz an appropriate assignment of such Earned Interest contemporaneously with payment by Heritage to Anschutz of that amount equal to the costs incurred by Anschutz attributable to the Earned Interest percentage of Heritage for such Prospect.
Clearly, Heritage would own a one-half interest in the Prospect Area of Mutual Interest if it paid Anschutz one-half of the acquisition costs. But, the Joint Venture Agreement is silent as to the time within which such payment was required. When no time for performance is given in a contract, the law will imply that the time of performance was to be a reasonable time. Moore v. Dilworth, 142 Tex. 538, 179 S.W.2d 940 (1944); Price v. Horace Mann Life Insurance Company, 590 S.W.2d 644 (Tex.Civ.App.Amarillo 1979, no writ). What is a reasonable time depends upon the facts and circumstances as they existed at the date of the contract. Hall v. Hall, 158 Tex. 95, 308 S.W.2d 12 (1958). Although "reasonable time" is a relative term, it never means an indulgence in unnecessary delay; instead it denotes such promptitude as the circumstances will allow for the action called for by the contract. Price v. Horace Mann Life Insurance Company, supra; 14 Tex.Jur.3d, Contracts, sec. 228 (1981).
In this case, the Joint Venture Agreement provided that the prospect would be considered ready ten days following the notice of readiness. It also provided that "[u]pon a determination of readiness of a Prospect, all provisions of the operating agreement attached hereto * * * shall control any further operations on the Prospect Area of Mutual Interest, * * *." It would *956 be a strained construction to provide for an effective date for the operating agreement at a time different from the time when the operator would know whether a non-operator had made the necessary payment to obtain an earned interest in the prospect about to be drilled. This is particularly so when Anschutz had to make a decision to drill the well alone and be solely responsible for more than $1,000,000.00 in drilling and completion costs.
Since the Joint Venture Agreement was silent on the time for performance, the trial court correctly submitted an issue to the jury as to what was a reasonable time for Heritage to pay its share of the acquisition costs. The jury found ten days was a reasonable time. We believe that finding was consistent with the facts and circumstances at the time the agreement was made and there is no attack in this appeal upon the sufficiency of the evidence to support that finding.
Having determined that the well was properly declared ready on December 9, 1982, and that Heritage had ten days to pay for and earn its one-half interest in the prospect and that it failed to do so, we now turn to the complaint that Anschutz denied Heritage its contract right to sell its interest within thirty days. The Joint Venture Agreement gave Heritage a right to sell its earned interest in any Prospect Area of Mutual Interest, and Anschutz had an option to buy one-fourth of that interest on the same basis on which Heritage was willing to sell to a third party. Paragraph 5(c) of the agreement provides:
If prior to receipt of notice of election to sell by Heritage, Anschutz gives notice to Heritage that it intends to drill a well on the Prospect Area of Mutual Interest, Heritage shall nonetheless have 30 days from receipt of such notice to drill to exercise its rights set forth above to sell its Earned Interest.
This provision applies only to "its Earned Interest." Paragraph 4 required payment to Anschutz in order for Heritage "to have earned one-half of all such interests in the Prospect Area of Mutual Interest." If there was no payment, there was no earned interest. If there was no earned interest, then there was nothing to sell within a thirty-day period and there was no breach of that contractual right. Point of Error No. One is overruled.
Heritage contends in Point of Error No. Two that the trial court erred in failing to enter judgment for it because Anschutz breached its fiduciary duty to it as a matter of law. The jury found in answer to Special Issue 14-B that Anschutz did not breach its fiduciary duty to Heritage by sending the December 9, 1982, letter and in treating Heritage's interest in the Moonlight South Prospect as being forfeited December 19, 1982. Heritage contends that as joint venturers, each of these parties owed the other a duty of utmost good faith and fair dealing. That is the holding in Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256 (1951). But, unlike Ginther v. Taub, 675 S.W.2d 724 (Tex.1984) and Manges v. Guerra, 673 S.W.2d 180 (Tex.1984), this is not a case where one party by some wrongdoing sought to obtain an unjust enrichment for itself. Anschutz's conduct was "open and above board." Heritage, and it alone, decided whether to pay and obtain an earned interest in the Prospect Area of Mutual Interest. It did not pay, and it did not even suggest after the December letter that more time was desired either to pay for its interest or to try to sell its interest. Instead it chose to remain silent, "ride the well down" and once it was determined that the well was commercially productive to claim a one-half interest. That can hardly be a claim for equitable relief by one with clean hands. At that time, Anschutz had spent or contracted to pay around $2,000,000.00 for acquisition costs, drilling expense and completion costs. Heritage had avoided committing itself for any of this expense. We conclude that the Fitz-Gerald, Ginther and Manges cases are not *957 controlling. Point of Error No. Two is overruled.
The last two points of error assert the trial court erred in entering judgment based upon the jury's answers to Special Issues 15 through 20. Those issues deal with matters of waiver and estoppel. Having concluded that Heritage was never entitled to any earned interest in the Prospect Area of Mutual Interest, those issues are immaterial and are not controlling as to the judgment which was entered. Finding no error, Points of Error Nos. Three and Four are overruled.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625374/ | 25 So. 3d 885 (2009)
Larry B. WHITE, Plaintiff-Appellee
v.
Annie W. WHITE, Defendant-Appellant.
No. 44,778-CA.
Court of Appeal of Louisiana, Second Circuit.
October 28, 2009.
*886 Tonya Courson, for Plaintiff-Appellee, Larry White and Individually as Second Appellant.
Richard L. Fewell, Jr., for Defendant-First Appellant, Annie White.
Before BROWN, MOORE, and LOLLEY, JJ.
BROWN, Chief Judge.
Annie W. White filed a Rule for Contempt of Court, Attorney Fees and Costs against her former husband, Larry B. White. The rule was filed to enforce a judgment partitioning the community property. The trial court denied the motion and Mrs. White appealed. Larry White also appealed. In brief, Larry White's attorney, Tonya Courson, objected "individually" to the trial court's judgment holding her personally responsible for court costs including the cost of a private process server. We affirm.
Facts
In a judgment on June 17, 2005, all community property issues between the parties were resolved. The judgment specifically stated that Larry White owed Annie White $6,752.16 as an equalizing payment but allowed Mr. White to liquidate this debt by making a $3,000 payment within 30 days, or monthly installment payments of $50 for 60 months. He chose to make the monthly installments. The judgment also contained a provision that would make the entire $6,752.16 due and payable if any of the installments were not timely paid.
On November 16, 2007, Annie White filed a Rule for Contempt of Court, Attorney Fees and Costs of Court. The rule called for the enforcement of the acceleration provision. Specifically the motion states:
That (Larry White) sent a check in the amount of $1,900.00, on March 6, 2007, with intent as his final payment of $3,000.00, which was return (sic) to him. Since (Mr. White) was late in the *887 months of June, October, and December of 2006, with his $50.00 payments, at that point the Judgment revert (sic) back to the entire amount with (sic) is $6,752.16 less the $1,100.00 already paid bringing his balance due to $5,652.16.
A contradictory hearing was not held until August 28, 2008. Mrs. White testified that although installments of $50 were made, Mr. White's payments were late for the months of June, October, and December of 2006. We note that no explanation was given as to why she waited until November 2007 to file her rule; however, on cross-examination, it was disclosed that Mr. White's checks were sent to Mrs. White's attorney, who would then forward them to her. Mrs. White further testified that she did not know when the checks were received by her attorney. She confirmed that Mr. White attempted to make a lump sum final payment of $1,900 in March of 2007. This payment represented the remainder of the $3,000 owed to Mrs. White. Because Mrs. White already considered that Mr. White had been late in previous payments, she refused this payment and requested that her attorney return the check. At this time, Tonya Courson had written to Mrs. White's attorney stating that she had been retained as Mr. White's attorney. The $1,900 check was then returned to Attorney Courson who did not notify Mr. White. It was Mr. White's testimony that he had no knowledge that the check was returned (although he was aware that it did not clear his bank account) and believed that his obligation was extinguished.
The trial court denied the motion for contempt but ordered Mr. White to again send the $1,900 to Mrs. White and assessed court costs to Mr. White's attorney, Tonya Courson. Mrs. White instituted this appeal, and Attorney Courson filed an appeal for Mr. White apparently concerning the assessment of court costs personally against her.
Discussion
The standard of review to be applied to factual findings in a civil matter is the manifest error standard. Arceneaux v. Domingue, 365 So. 2d 1330 (La.1978). Under this standard, the reviewing court does not substitute its own judgment for that of the factfinder, but determines whether its findings were reasonable. Hubbard v. Allied Building Stores, Inc., 41,534 (La.App.2d Cir.11/01/06), 942 So. 2d 639. Thus, where there are two permissible outcomes, neither choice can ever be manifestly erroneous. Id. Therefore, the court of appeal may not reverse the decision if the factfinder's conclusions are reasonable in light of the record, even if the appellate court would have reached the opposite conclusion as factfinder. Id.
In the matter sub judice, a partition judgment was rendered on June 17, 2005. This judgment set forth the payment options for Mr. White. There was also an acceleration clause. It is uncontested that defendant made regular monthly payments of $50 totaling $1,100, and then attempted to make a final payment of $1,900. It is also uncontested that this final payment would have extinguished defendant's obligation to his ex-wife. The critical issue is whether defendant was late in making three payments in 2006 so that the acceleration clause of the judgment would be applicable.
Mrs. White testified that defendant sent payments to her attorney, who would then forward those payments to her. On cross-examination, Mrs. White was presented with copies of the cancelled checks. She acknowledged that there was a lag time between the date the checks were issued and the date they were processed at her bank. She also admitted that she rejected *888 the $1,900 check because she wanted the full $6,752.
Mrs. White's evidence was insufficient to show that defendant was late in making his payments. We cannot therefore conclude that the trial court's ruling on this issue was manifestly erroneous, and we affirm the trial court's ruling in this respect.
As to the imposition of costs against attorney Tonya Courson, we note that La. C.C.P. art. 863 states, in pertinent part:
... the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney's fee.
In Parker v. Progressive Ins. Co., 31,147 (La.App.2d Cir.10/28/98), 720 So. 2d 408, this court stated:
We conclude that the sanction in the present case is not demeaning and pointless for an attorney who is an officer of the court. White has a duty before filing suit to conduct a reasonable inquiry into the allegations made by his client and, in the present case, he failed to fulfill his duty. Monetary sanctions were proper in this case.
In a letter dated March 6, 2007, Larry White sent a $1,900 check to Richard Fewell, who was Mrs. White's attorney. Written on the check were the words, "final payment." In response, on March 13, 2007, Mr. Fewell wrote to Larry White that the balance owed was $5,702.16 plus court costs.
On March 28, 2007, Tonya Courson wrote to Mr. Fewell that she had been retained by Larry White and stated that "should Mrs. White not wish for the $1,900 to be a final payment please return the check to my mailing address and Mr. White will resume the $50 payment each month until the full $3,000 is satisfied." On May 8, 2007, the check was returned to Attorney Courson by Mr. Fewell. Attorney Courson did not notify Mr. White.
On November 20, 2007, the present rule was filed and a hearing date of January 14, 2008, was set. Service was made on Tonya Courson as the attorney of record for Larry White. Attorney Courson filed a pleading requesting a continuance of the hearing set for January 14, 2008, because she was not enrolled as counsel of record and service on her was ineffective. The matter was reset for June 2, 2008. Because previous attempts to serve Mr. White had been unsuccessful, Mrs. White's attorney filed a motion to appoint a process server. The motion was granted, and Mr. White was served on May 29, 2008.
On June 2, Attorney Courson appeared and again moved for a continuance, claiming that her client was served three days earlier and that she was not adequately prepared. The court set a new hearing date of August 26, 2008. On August 26, neither Mr. White nor Attorney Courson appeared. The court then found Mr. White in contempt, assigned costs and attorney's fees and issued warrants for the appearance of both Mr. White and Attorney Courson in court on August 28, 2008, to explain their absence.
At this hearing on August 28, it was determined that Mr. White was not aware that his payment of $1,900 in March 2007 had been refused. Attorney Courson had neither forwarded the returned $1,900 check nor contacted him. Mr. White testified that although he had sent the $1,900 check in March 2007, he did not know until May 2008, a full year later, that this check had been returned to his attorney. *889 Attorney Courson elicited self-serving testimony from Mr. White that he had only hired her to write a letter and not to represent him in this matter. This contradicts not only her correspondence with opposing counsel, but also her appearances and filings in court. Thus, we cannot find the trial court's assessment of sanctions to attorney Tonya Courson pursuant to La. C.C.P. art. 863 to be an abuse of his discretion.
Conclusion
For the foregoing reasons, we hereby AFFIRM in all respects the trial court's judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625356/ | 464 So. 2d 144 (1984)
Roberto C. FRAGA, M.D., Appellant,
v.
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
No. 83-1374.
District Court of Appeal of Florida, Third District.
May 15, 1984.
On Rehearing February 12, 1985.
Rehearing Denied March 19, 1985.
Bryson & Berman, Rodney Bryson and John E. Bergendahl, Miami, for appellant.
Theodore E. Mack, Chattahoochee, for appellee.
Before SCHWARTZ, C.J., and BARKDULL and BASKIN, JJ.
BASKIN, Judge.
This is an appeal from a final agency order directing Dr. Fraga to reimburse the Department of Health and Rehabilitative Services [HRS] the sum of $38,252.75 received by him as payment for psychiatric services he rendered between January 1, 1980, and February, 1982. We affirm.
Dr. Fraga, a practicing psychiatrist who left Cuba in 1967, obtained a license to practice medicine and surgery in Florida in 1973. He did not obtain certification from the American Board of Psychiatry because his age precluded him from entering a required residency program. Proceeding without Board certification, but with the full approval of HRS, Dr. Fraga provided psychiatric services to Medicaid recipients from 1974 through 1979. In February, 1980, HRS sent Dr. Fraga a letter informing him that only Board certified or Board eligible psychiatrists were permitted to bill Medicaid for psychiatric services under the eligibility requirement of Florida Administrative Code Rule 10C-7.38, which went into effect on January 1, 1980.[*] The rule *145 provided: "Payment for psychiatric services shall be made only to Board candidates or Board certified psychiatrists."
A few days after receiving this information, Dr. Fraga advised HRS that although he was neither Board certified nor Board eligible, he had extensive experience and qualifications as a psychiatrist. Despite the fact that Dr. Fraga was now aware that he lacked the Board certification required by the new rule and that he had not received HRS authorization to participate in the Medicaid program, Dr. Fraga nevertheless continued to treat patients and to bill HRS for psychiatric services rendered under Medicaid. HRS, as a matter of course, continued to pay Dr. Fraga's claims. During the summer of 1981, the Medicaid Office of Provider Relations discovered that ineligible psychiatrists were billing the Medicaid program for psychiatric services rendered to Medicaid recipients. To determine which doctors were qualified to bill the program, HRS sent all providers of psychiatric services form letters requesting documentation of Board eligibility or Board certification and advising them that only Board certified or Board eligible psychiatrists were entitled to bill the program. Dr. Fraga received this form letter in August, 1981. He immediately answered by again informing HRS that he was not Board certified or Board eligible and repeated his extensive background and qualifications. HRS did not immediately reply to Dr. Fraga's August letter. During the ensuing nine months, Dr. Fraga continued to treat patients and to bill the Medicaid program for psychiatric services, and HRS continued to pay his claims. Dr. Fraga never advised HRS that he was entitled to bill the Medicaid program for providing psychiatric services to Medicaid recipients, and Dr. Fraga is not presently and has never been a Board certified or Board eligible psychiatrist.
On March 9, 1982, HRS sent Dr. Fraga a letter advising him that he was ineligible to be compensated for furnishing psychiatric services to the Florida Medicaid program and demanding that he reimburse the Medicaid program the sum of $38,252.75 as overpayments by Medicaid based upon improper billings for psychiatric services rendered by Dr. Fraga from January, 1980, through March, 1982. After an administrative hearing, the hearing officer issued a Recommended Order rejecting Dr. Fraga's contentions that HRS was equitably estopped from seeking reimbursement. The hearing officer concluded:
2. Petitioner is statutorily responsible for the administration of the Florida Medicaid Program, specifically, protecting the integrity of the Program. Sections 409.266(1) and (6)-(9), Florida Statutes.
3. Effective January 1, 1980, Section 10C-7.38(4)(a)8, Florida Administrative Code, has provided that "Payment for psychiatric services shall be made only to Board candidates or Board certified psychiatrists."
4. Respondent urges that the doctrine of equitable estoppel should be invoked against Petitioner to bar it from asserting its claim. This doctrine rests upon three basic premises: (a) that one party by words or conduct has caused another to believe that a material fact or a material state of the law exists, (b) the party misled must have relied on this representation, and (c) the position of that party must have been changed as a result of reliance upon the state of affairs. Davis and Sons v. Askew, 343 So. 2d 1329 (Fla. 1st DCA 1979 [1977]); Greenhut Construction Co. v. Knott, [247] 242 So. 2d 517 (Fla. 1st DCA 1971). Equitable estoppel may be invoked against the State only under exceptional circumstances. North American Company v. Green, 120 So. 2d 603 (Fla. 1960).
5. The facts of the instant case do not justify application of the doctrine of equitable estoppel against Petitioner. The record reflects that Respondent was advised of the limitations on billing for psychiatric services under the Medicaid Program on February 4, 1980, one month after the effective date of Section 10C-7.38(4)(a)8, Florida Administrative Code. Although, by his own admission, Respondent *146 was aware that he was not qualified to bill for psychiatric services pursuant to that administrative rule, he continued to bill and receive payment for those services. The record does not reflect that Petitioner advised Respondent that, notwithstanding the limitations imposed by the new rule, he was entitled to bill the Medicaid Program for psychiatric services.
Petitioner's continued payment to Respondent for services does not constitute "misleading" behavior sufficient to invoke the doctrine of equitable estoppel against Petitioner. See Southwest Community Mental Health Center v. Department of Health and Rehabilitative Services, Case No. 82-106PH, Final Order December 6, 1982. Respondent was specifically advised of the limitations placed upon billing for Medicaid psychiatric services. Nevertheless, he continued to bill and receive payment for such services. The fact that Petitioner, due to the size and complexity of the Medicaid Program, failed to pre-audit Respondent's claims, thereby improperly paying him for services for a period of time, does not give rise to an estoppel. Effective January 1, 1980, the law prohibited Respondent from billing Medicaid for psychiatric services, and Petitioner advised him in written form twice that he was not entitled to receive payment.
HRS entered a Final Order adopting the Recommended Order, requiring Dr. Fraga to reimburse Medicaid.
We find that the hearing officer has correctly interpreted the applicable law in determining that the doctrine of equitable estoppel does not apply to the facts of this case. Appellant's reliance on the case of Florida Livestock Board v. Gladden, 76 So. 2d 291 (Fla. 1954) is misplaced. In that case, the Florida Livestock Board notified hog farmers, through its own regulations, that they could feed uncooked garbage to hogs until August 15, 1953, and after that date, it would be unlawful to feed the hogs uncooked garbage. However, the actual effective date of the legislative act prohibiting the feeding of uncooked garbage was August 4, 1953. The Board, taking the position that it could not extend the effective date of the Act, refused compensation to a hog farmer whose hogs were seized because they had been fed uncooked garbage after August 4, 1953, but before August 15, the effective date of the rules. The supreme court held that the hog farmer was entitled to compensation for the seized animals based upon the fact that the Board, acting within the scope of its implied authority to pass regulations implementing the Act, specifically advised farmers that the prohibition against feeding uncooked garbage to hogs would not be effective until August 15, 1953. Under those exceptional circumstances, the doctrine of equitable estoppel applied against the state, because, as the court stated, to rule otherwise "would be tantamount to the perpetration of a fraud by an administrative agency of the state against one of its citizens." Id. at 293. In the case before us, HRS continued to pay Dr. Fraga during the two-year period in which he improperly billed Medicaid. Because appellant knew that he did not qualify for payment when he rendered psychiatric services, it cannot be said that HRS "perpetrated a fraud" against him within the meaning of Florida Livestock Board, even though it continued to pay him.
The doctrine of equitable estoppel is not applicable in transactions which are forbidden by statute or which are contrary to public policy. See Dade County v. Bengis Associates, Inc., 257 So. 2d 291 (Fla. 3d DCA), cert. denied, 261 So. 2d 839 (Fla. 1972); City of Miami Beach v. Meiselman, 216 So. 2d 774 (Fla. 3d DCA 1968), cert. denied, 225 So. 2d 533 (Fla. 1969); State ex rel. Schwartz v. City of Hialeah, 156 So. 2d 675 (Fla. 3d DCA 1963). Courts have consistently refused to apply estoppel against the state on the basis of unauthorized or mistaken acts or representations of state officers. See, e.g., Austin v. Austin, 350 So. 2d 102 (Fla. 1st DCA 1977), cert. denied, 357 So. 2d 184 (Fla. 1978) (misstatement of law in pamphlet issued by division of retirement *147 did not operate as an estoppel against division); Bengis Associates (city not estopped from requiring removal of sign used for almost two years where permit for sign was mistakenly issued in violation of zoning ordinance); Meiselman (city not estopped from revoking permit for erection of sign where permit was erroneously issued in violation of city ordinance). The hearing officer in the case before us correctly observed that estoppel will lie against the state only in rare and exceptional circumstances. See, e.g., George W. Davis & Sons, Inc. v. Askew, 343 So. 2d 1329 (Fla. 1st DCA 1977); Florida Livestock Board. The special circumstances required to invoke estoppel must include a positive act on the part of a state official upon which the party claiming estoppel has a right to rely. See State v. Hadden, 370 So. 2d 849 (Fla. 3d DCA 1979); Jefferson National Bank v. Metropolitan Dade County, 271 So. 2d 207 (Fla. 3d DCA 1972), cert. denied, 277 So. 2d 536 (Fla. 1973). Moreover, "one's own wrongful act ordinarily cannot serve as a basis of a claim of estoppel against another... ." Id. at 214.
The exceptional circumstances necessary to apply the doctrine of equitable estoppel are not present in this case. The improper payments made by HRS do not constitute the positive act by a state official required to invoke the doctrine of estoppel against the state. Hadden; Jefferson National Bank. Dr. Fraga's actions in continuing to bill Medicaid for psychiatric services rendered despite his knowledge that he was ineligible to receive payment precludes his claim of estoppel. See Department of Revenue v. Anderson, 403 So. 2d 397 (Fla. 1981); Jefferson National Bank; Bengis Associates.
Appellant's remaining points lack merit.
Finding no error, we affirm the final order.
SCHWARTZ, Chief Judge (dissenting).
Since my sense of justice is thoroughly offended by the decision rendered below and approved here, I must dissent.
On February 8, 1980, within days after his receipt of a form letter from the HRS which did not include a copy of the new eligibility rule in question Dr. Fraga wrote the department asking whether he should continue to treat the over 100 benefit-eligible psychiatric patients he was seeing every month. For over two years, the department did not deign even to acknowledge, much less to respond directly either to this or to another specific letter from the appellant. It did, however undoubtedly through a nameless, faceless, and supremely ignorant computer[1] without complaint or question and just as it had previously, pay the bills which the doctor routinely submitted for services he rendered each month. And on August 5, 1981, in another form letter, it indicated that the board eligibility or certification requirement applied to "new[2] individual psychiatric providers" [e.s.],[3] which obviously did not include him.
It seems clear that these acts of callous non-responsiveness, longstanding and unprotesting payment, and affirmative misleading should estop the state from asserting, as it first did in March, 1982, that it had been wrong all along, and that Dr. Fraga is required to provide and it and its clients are entitled to receive $38,252.75 of concededly competent services for nothing. See Kuge v. State of Florida, Department of Administration, Division of Retirement, 449 So. 2d 389 (Fla. 3d DCA 1984); Salz v. Department of Administration, Division of Retirement, 432 So. 2d 1376 (Fla. 3d DCA 1983); see generally, Florida Livestock Board v. Gladden, 76 So. 2d 291 (Fla. 1954). I am utterly dismayed that the majority has instead permitted the department's *148 classic example of bureaucratic ineptitude and indifference, with its supremely adverse consequent effect upon an innocent citizen, not only to escape the censure it richly deserves, but actually to come out ahead.
On Motion for Rehearing
PER CURIAM.
The panel[1] adopts the dissenting opinion of Chief Judge Schwartz as the view of this court. Accordingly, the order under review is reversed.
BASKIN, Judge (dissenting).
Because I disagree with the procedures employed by the court, as well as with the merits of the new majority opinion on rehearing, I respectfully dissent.
My primary reason for dissenting from the majority is based upon my disagreement with the merits of its opinion. The majority opinion released today rests, not upon a solid legal foundation, but upon a purported offense to a "sense of justice." The majority rejects years of case law standing for the proposition that "the doctrine of equitable estoppel is not applicable to transactions which are forbidden by statute or which are contrary to public policy,"[1] slip op. at 5 (May 14, 1984); instead, it declares that the State of Florida was guilty of "bureaucratic ineptitude and indifference." Although the majority opinion is a compassionate response, it nevertheless reflects the individual sensibilities of judges rather than well-entrenched legal principles and offers little guidance for future cases. It is only through the passage of laws and the uniform interpretation of those laws that a "sense of justice" can benefit those who seek access to the courts.
My second disagreement with the majority is predicated upon the procedural context in which this opinion was issued. Following the issuance of the original majority opinion and dissent, appellant filed Motion for Rehearing and Motion for Rehearing En Banc. This court granted en banc review, permitting each litigant to file a supplemental brief. The cause was set for oral argument and heard by the entire court. At the conclusion of the argument, the full court retired to consider the case. During conference discussion, but before a vote of the full court could be taken, a member of the original panel decided to concur in the opinion of the original dissenter. As a result, the court's new opinion is directed solely to the petition for rehearing. The opinion reflects only the views of two members of the original panel and adopts the original dissent. In a footnote, the majority vacates the order granting rehearing en banc.[2] I believe the court, by proceeding without adopting and publishing guidelines, has overlooked the purpose of the en banc rule expressed by the Supreme Court of Florida in Chase Federal Savings & Loan Association v. Schreiber, 9 FLW 313 (Fla. July 26, 1984).
The procedures employed by the court are cause for concern. By responding to Florida Appellate Rule 9.331 without establishing internal rules for the conduct of en banc proceedings and apprising counsel of the standards to be followed, the court may be subjecting itself to claims that its actions are arbitrary and selective rather than uniform and deliberate. The court's procedures raise many questions which remain unanswered. Under what circumstances, for example, may a litigant who has been granted the right to brief and to argue before the en banc court expect a vote to be taken? What types of cases will be privileged to receive the benefit of the views of the entire court? At what stage *149 may en banc review be aborted in favor of consideration by a three-judge panel? These questions demonstrate the need for published rules. The adoption of internal rules is imperative not only to maintain uniformity, but also to provide due process rights to litigants. The purpose of the en banc rule is to attain uniformity; in the absence of rules insuring uniformity of treatment, the purpose of the en banc rule is vitiated and due process is ignored.
The majority opinion is procedurally infirm for another reason. By withdrawing its order granting en banc review, the majority necessarily concedes that the original majority opinion contains no lack of uniformity with prior decisions of this court. Consequently, the matter is not ripe for en banc review. Since no legal basis for granting a petition for rehearing has been demonstrated, rehearing should have been denied as well. Thus, the court lacks jurisdiction to issue the present panel opinion. Hollander v. Hollander, No. 83-1581, 466 So. 2d 268 (Fla. 3d DCA 1985) (Baskin, J. dissenting); see Meehan v. Celotex Corp., No. 82-122, 466 So. 2d 1100 (Fla. 3d DCA 1985) (Hubbart, J. dissenting).
For these reasons, I adhere to the views expressed in the original opinion and would affirm the order appealed.
NOTES
[*] The rule was amended in 1982 to provide:
8. Payment for psychiatric services shall be made only for those services personally rendered by psychiatrists, as defined in 10C-7.38(1)(h).
Section (1)(h) defines psychiatrist:
"Psychiatrist" means a state licensed physician who is certified or meets the requirements for certification by the American Board of Psychiatry and Neurology or the American Osteopathic Board of Neurology and Psychiatry.
[1] The fact that the state acts through a machine cannot render that conduct any less the "positive act" of a state official for the purposes of invoking the rule cited by the court. See State v. Hadden, 370 So. 2d 849 (Fla. 3d DCA 1979).
[2] While the form letter writer was probably inaccurate, Dr. Fraga did not know that this was the case.
[3] The majority opinion does not mention this fact.
[1] This case was argued before the entire court pursuant to an order granting rehearing en banc. The instant panel decision necessarily effects the vacation of that order.
[1] See Dade County v. Bengis Assoc., Inc., 257 So. 2d 291 (Fla.3d DCA), cert. denied, 261 So. 2d 839 (Fla. 1972); City of Miami Beach v. Meiselman, 216 So. 2d 774 (Fla. 3d DCA 1968), cert. denied, 225 So. 2d 533 (Fla. 1969); State ex rel. Schwartz v. City of Hialeah, 156 So. 2d 675 (Fla. 3d DCA 1963).
[2] I find no authority permitting two judges to vacate an order entered by an en banc court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625382/ | 464 So. 2d 899 (1985)
IBEROAMERICANO ADVERTISING AND PUBLISHING COMPANY d/b/a The Diplomat for the Americas Magazine
v.
Ernesto SCHWEIKERT, III.
No. CA 2133.
Court of Appeal of Louisiana, Fourth Circuit.
February 12, 1985.
*900 Sidney F. Rothschild, New Orleans, for appellant.
David D. Duggins, New Orleans, for appellee.
Before GULOTTA, BYRNES and CIACCIO, JJ.
CIACCIO, Judge.
Appellant appeals from a default judgment rendered against him in a suit on an open account. Appellant contests the judgment by arguing (1) that the debt is not an open account, (2) that the evidence is insufficient to support the judgment, (3) that appellant is not the obligor, (4) that the obligation is contractual (i.e. not an open account), and (5) that appellee is not entitled to recover attorney fees. We amend the judgment to disallow the award for attorney fees, and otherwise affirm.
Plaintiff's petition alleges a sale of seven trade agreements to defendant. A copy of each of the seven trade agreements is attached to the petition. The seven agreements were sold to defendant at a 15% discount. They were all sold on the same day and each became due on the same date. The amount sued for implies an allegation that defendant made no payments.
The record indicates personal service of plaintiff's petition upon defendant on October 14. On November 15 plaintiff moved for, and was granted, judgment by default. La.C.C.P. Art. 1701. The clerk's certificate indicates that as of 8 a.m. on November 15 "nothing has been filed by defendant."
On November 28 plaintiff confirmed the judgment by default. La.C.C.P. Art. 1702. As prima facie proof plaintiff submitted an affidavit of correctness, La.C.C.P. Art. 1702 B., by its president.
Appellant argues that the trade agreements represent contractual obligations and cannot, therefore, constitute an open account. The agreements between plaintiff and the various obligors to the trade agreements may be contractual in nature, and once plaintiff transferred its rights to appellant, appellant's relationship *901 with the various obligors may be contractual. This contractual relationship, however, is not the object of this suit.
Plaintiff discounted its rights in the trade agreements and sold its rights to defendant on account. Plaintiff's petition alleges the amount of the sale to be "past due and owing." La.R.S. 9:2781 C. provides that:
C. For the purposes of this Section and Code of Civil Procedure Articles 1702 and 4916, "open account" includes any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions. "Open account" shall include debts incurred for professional services, including, but not limited to, legal and medical services.
Plaintiff sued defendant on an "open account."
A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. La.C. C.P. Art. 1702 A. A prima facie case is established only when the evidence proves the essential allegations of the petition to the same extent required as if those allegations had been specifically denied. Premier Brands, Inc. v. Martiny, 377 So. 2d 864 (La.App. 4th Cir.1979). When the sum due is on an open account an affidavit of the correctness thereof shall be prima facie proof. La.C.C.P. Arts. 1702 B.
The prima facie proof necessary under La.C.C.P. Art. 1702 for a default judgment on a suit "on an open account" consists of the account itself, verified by a competent witness's affidavit (or testimony) of its correctness. American District Telegraph Company v. Rault, 378 So. 2d 194 (La.App. 4th Cir.1979). Plaintiff attached to its petition a copy of each of the agreements sold to defendant, each of which contained the terms of the sale. Since plaintiff claims that these seven agreements constitute the entire amount owed by defendant on account, this documentation provides evidence at least as good as an account sheet itemizing the seven sales. The affidavit of plaintiff's president attests to his familiarity with the books and business of plaintiff, and to the correctness of the amount claimed as past due and owed on defendant's account for the seven agreements. We find this evidence sufficiently establishes prima facie proof of the allegations of plaintiff's petition.
Appellant also argues that the evidence does not establish that he is the obligor. We have examined the documentation evidencing the seven sales and we find the evidence preponderates in favor of the conclusion that appellant is the obligor.
Accordingly we do not find error in the trial court's rendering judgment against defendant on the open account. We do, however, find error in the award of attorney fees.
To be awarded attorney fees, the claimant in a suit on an open account must strictly comply with the provisions of La. R.S. 9:2781. Ferd. Marks-Smither and Company, Ltd. v. Home Furnishing Store, Inc., 430 So. 2d 239 (La.App. 4th Cir.1983). The claimant must prove defendant's "receipt of written demand ... correctly setting forth the amount owed and a copy of the invoices in support thereof." (Emphasis supplied) The only record evidence of plaintiff's compliance is the affidavit of its president stating that proper demand had been made on defendant. We find this insufficient to prove strict compliance.
La.C.C.P. Art. 1702 permits an affidavit of correctness to establish prima facie proof of the accuracy of an account. No such provision exists for establishing compliance with the statute for awards of attorney fees. Even the affidavit of correctness is not permitted to stand alone but accompanies evidence of the account. Here we have no evidence of the demand letter or what it contained and what invoices were attached to it. We also have no evidence of whether defendant actually received *902 the written demand (or alternatively, the "due diligence" exception provided for in La.R.S. 9:2781 B.). Consequently, we find the award of attorney fees to have been improper.
Accordingly, the judgment of the trial court in favor of the plaintiff for the amount owed by defendant on account is affirmed. The award of attorney fees is reversed and set aside.
AFFIRMED IN PART AND REVERSED IN PART. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625377/ | 25 So. 3d 669 (2010)
Roderick B. WOODS, Appellant,
v.
STATE of Florida, Appellee.
No. 4D08-4556.
District Court of Appeal of Florida, Fourth District.
January 13, 2010.
Rehearing Denied February 10, 2010.
Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
POLEN, J.
Appellant, Roderick B. Woods, appeals the trial court's denial of his motion to suppress evidence and order adjudicating him guilty of possession of a firearm by a *670 convicted felon, possession of ecstasy, possession of cocaine, and possession of less than twenty grams of marijuana. We affirm.
Woods was arrested after police officers responding to an anonymous tip regarding a homicide in Woods' apartment building found drugs and a firearm inside Woods' bedroom. After receiving the tip, three officers went to Woods' apartment. An officer knocked on the apartment door, and a woman answered. An officer asked the woman if others were in the apartment, and the woman said there were. When the other individuals appeared at the door, the officers informed them that they were investigating a homicide and asked the individuals to step outside to talk. The individuals complied without resistance. At no point did any of the officers draw a gun, taser, or other weapon, nor was their request made in a loud or intimidating fashion.
Woods exited the apartment with no shirt on and subsequently asked if he could go inside and get a shirt. Officer Nubin replied that he could, but that she would have to accompany him for officer safety reasons. Officer Harris asked, "Are you sure it's all right if we follow you back to your room?" and Woods replied, "Yes." Harris and Nubin followed Woods to his room and saw in plain sight a bag of marijuana and a bag of what appeared to be crack cocaine. Upon executing a search warrant, marijuana, cocaine, and firearms were recovered. Up until the point when the officers saw marijuana in his room, Woods was free to leave.
The trial court found the encounter was consensual and denied Woods' motion to suppress. Thereafter, Woods pled no contest to the charges and the trial court sentenced him to ninety days imprisonment with credit for seventy-three days served. Woods now timely appeals.
Woods argues the trial court erred in denying his motion to suppress because the encounter was not consensual. Specifically, Woods contends that when the officers asked the individuals to step outside the apartment, the encounter evolved into an investigative stop. The State replies that there was no error because the officers' account was credible and showed the encounter was consensual.[1]
In reviewing a trial court's determination as to a motion to suppress, this court must defer to the trial court's factual findings and review any legal conclusions de novo. Backus v. State, 864 So. 2d 1158, 1159 (Fla. 4th DCA 2003). In Popple v. State, 626 So. 2d 185 (Fla.1993), the Florida Supreme Court described the different levels of police stops:
There are essentially three levels of police-citizen encounters. The first level is considered a consensual encounter and involves only minimal police contact. During a consensual encounter a citizen may either voluntarily comply with a police officer's requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked.
The second level of police-citizen encounters involves an investigatory stop as enunciated in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). At this level, a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. In order *671 not to violate a citizen's Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.
. . . [T]he third level of police-citizen encounters involves an arrest which must be supported by probable cause that a crime has been or is being committed.
Id. at 186 (internal citations omitted).
Woods likens the present case to cases in which the court has held that an officer's use of authority to get an individual to remove his hand from his pocket or to exit a vehicle transformed an ordinary stop into a temporary detention and thus amounted to an illegal seizure. Woods relies heavily on Popple in which a police officer approached a legally parked car in a desolate area and asked the occupant to exit the vehicle. Id. at 186. When the occupant opened the door, the police officer saw a cocaine pipe on the floorboard in plain view. Id. The occupant was arrested and charged with possession of cocaine and possession of drug paraphernalia. Id. The Florida Supreme Court held:
Whether characterized as a request or an order, we conclude that Deputy Wilmoth's direction for Popple to exit his vehicle constituted a show of authority which restrained Popple's freedom of movement because a reasonable person under the circumstances would believe that he should comply.
Therefore we hold that for Fourth Amendment purposes Popple did not consent to exiting his vehicle, but rather was seized by virtue of submitting to Deputy Wilmoth's show of authority. Because Deputy Wilmoth did not have the reasonable suspicion necessary to authorize an investigatory stop, the initial detention was illegal and the resulting acquisition of the cocaine and drug paraphernalia was the fruit of an unconstitutional seizure.
Id. at 188 (footnote and internal citation omitted).
Popple is not dispositive of the present case. First, Popple is factually distinguishable. In Popple, an officer asked the driver of a legally parked vehicle to step outside his vehicle because the driver was acting nervously. Here, the officers responded to an apartment after receiving a tip in a homicide investigation, the individuals inside the apartment willingly exited to speak with the officer, and the officers ultimately gained Woods' permission to enter the apartment. Second, Popple does not negate the "totality of the circumstances" approach adopted by the United States Supreme Court in United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980), where the Court held:
[A] person has been "seized" within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.
Id. at 554, 100 S. Ct. 1870.
State v. Triana, 979 So. 2d 1039 (Fla. 3d DCA 2008), is not only factually similar to the instant case but properly considers the factors considered in Mendenhall. In Triana, four officers approached the gate of Triana's two-acre estate at 9 p.m. after receiving information from a confidential source that there was marijuana growing *672 at the residence. Id. at 1041. Triana ultimately gave his consent for the officers to search the property and allowed the officers in his home. Id. Once inside the home, the officers noticed a second building and received Triana's written consent to their search of that structure. The officers recovered 103 pounds of marijuana. Id. at 1042.
Triana moved to suppress the evidence arguing that the encounter was an illegal seizure. The Third District reversed the trial court's suppression of the evidence. Id. at 1042-45. First, the court explained that no level of suspicion was required before the officers arrived at the gate and questioned Triana. Id. at 1043. Such practice is commonly referred to as a "knock and talk" and is "a legitimate investigative procedure so long as the encounter does not evolve into a constructive entry. . . . As such, a knock on the door and subsequent discussion is a purely consensual encounter, which officers may initiate without any objective level of suspicion." Id. (citations omitted). The court noted that the fact that the initial questioning occurred outside of the residence supported a conclusion that Triana was not in custody because even an interview inside one's home is not ordinarily considered a custodial interrogation. Id. Finally, the consensual encounter between Triana and the officers never became a "constructive entry" because the officers did not employ overbearing tactics, such as drawing weapons, threatening Triana, or raising their voices, that would have coerced Triana out of his home. Id. at 1044.
Like the Third District in Triana, we have considered the Mendenhall factors and find no Fourth Amendment violation in the present case. The officers never acted in a threatening manner, never drew their weapons, and never raised their voices or ordered the residents to do anything against their will. Accordingly, we affirm.
Affirmed.
MAY and GERBER, JJ., concur.
NOTES
[1] While the testimony of the witnesses varied greatly as to what occurred after the officers knocked on the apartment door, we must accept that version offered by the officers, whom the trial court found to be more credible. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625392/ | 464 So. 2d 822 (1985)
STATE of Louisiana
v.
James WILLIAMS.
No. 84-KA-309.
Court of Appeal of Louisiana, Fifth Circuit.
February 11, 1985.
John M. Mamoulides, Dist. Atty., Abbott Reeves, Dorothy A. Pendergast, Asst. Dist. Attys., 24th Judicial Dist., Parish of Jefferson, Gretna, for plaintiff-appellee.
Philip E. O'Neill, A. Bruce Netterville, Gretna, for defendant-appellant.
Before BOUTALL, KLIEBERT and CURRAULT, JJ.
KLIEBERT, Judge.
The defendant, James Williams, was charged by bill of information with a violation of R.S. 40:966possession of marijuana with intent to distribute, and a violation of R.S. 40:969possession of Diazepam with intent to distribute. After pleading not guilty to the charges, the defendant waived his right to a jury trial and was tried by the trial judge.
The defendant, through his attorney, and the State of Louisiana, through the Jefferson Parish District Attorney's office, stipulated to the following facts:
(1) James Williams was, in fact, in possession of a controlled dangerous substance, to-wit: marijuana;
(2) If a chemist was called to testify, he would in fact testify that it was marijuana *823 and that the defendant possessed that marijuana;
(3) The defendant possessed the marijuana in the Parish of Jefferson, State of Louisiana; and
(4) The defendant was in possession of marijuana to the extent of two pounds, which would be 32 ounces of marijuana and/or 500 individual marijuana cigarettes.
No other evidence was presented by either party. The State then dismissed the charge related to possession of Diazepam with intent to distribute.
Based upon the stipulations, the trial court found the defendant guilty of possession of marijuana with intent to distribute and sentenced the defendant to eighteen (18) months imprisonment at hard labor, to run concurrently with a ten (10) year sentence the defendant was then serving in the State of Florida.
It is this conviction and sentence from which the defendant appeals.
In his assignments of error, the defendant contends it was error for the trial court to convict him of possession with intent to distribute because no rational trier of fact could find the defendant guilty of possession of marijuana with intent to distribute solely on the basis of possession of two pounds of marijuana. The assignments of error all address the same issuewhether there was sufficient evidence to prove that the defendant intended to distribute the marijuana.
Under the constitutional standard for testing the sufficiency of evidence enumerated in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), followed in State v. Wright, 445 So. 2d 1198 (La.1984), a conviction must be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime charged beyond a reasonable doubt. Where the evidence submitted to prove the crime is circumstantial, in order to convict, the evidence must exclude every reasonable hypothesis of innocence.
To support the conviction here requires proof of two elements(1) possession and (2) intent to distribute. Possession is shown by the stipulation and admitted by the defendant on appeal. Thus, left for determination is "intent to distribute." Narcotic offenses involving possession with intent to distribute requires proof of specific intent. State v. Elzie, 343 So. 2d 712 (La.1977).
According to R.S. 14:10, specific criminal intent is the "state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequence to follow his act or failure to act." Intent to distribute may be inferred from the circumstances. R.S. 15:445; State v. Greenway, 422 So. 2d 1146 (La.1982). Moreover, mere possession of marijuana is not evidence of intent to distribute unless the quantity is so large that no other reasonable inference can be concluded from the mere possession of the quantity. State v. Greenway, supra; State v. House, 325 So. 2d 222 (La.1975). Therefore, to convict Williams of possession of marijuana with intent to distribute, the State must prove beyond a reasonable doubt that Williams had the specific intent to distribute marijuana.
In State v. House, supra, the court, at page 225, indicated the following are factors from which it can be reasonably inferred there was an intent to distribute:
".... the State offered no evidence: (1) that the defendant ever distributed or attempted to distribute any marijuana; (2) that the marijuana was in a form usually associated with marijuana possessed for distribution to others; (3) that the amount was such as to create a presumption of intent to distribute; (4) of expert or other testimony that such an amount as found on the defendant is inconsistent with personal use only; and (5) of any paraphernalia, such as baggies or scales, evidencing an intent to distribute."
*824 In State v. Sibley, 310 So. 2d 100 (La. 1975), intent to distribute was found where the defendant possessed enough marijuana for six hundred cigarettes. In this case, the stipulated facts include a stipulation that the defendant possessed two pounds of marijuana and/or five hundred cigarettes. However, in Sibley, supra, there was evidence that the marijuana seized was found in a number of plastic bags in the defendant's residence and in a brown paper sack containing 25 plastic bags under the sink and 5 plastic bags in a closet in a residence being rented by the defendant. That type of evidence is lacking in this case.
For the foregoing reasons, therefore, we conclude that there was insufficient evidence to prove intent to distribute and therefore vacate the conviction for possession of marijuana with intent to distribute. Since possession of marijuana is responsive to the charge of possession of marijuana with intent to distribute and since the evidence supports the conviction of possession of marijuana, a judgment of conviction of possession of marijuana will be entered and the matter is remanded to the trial court for resentencing.
CONVICTION SET ASIDE; NEW CONVICTION ENTERED; REMANDED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625389/ | 464 So. 2d 357 (1985)
James H. QUINN, et ux., Plaintiff-Appellee,
v.
STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Defendant-Appellant.
No. 83-949.
Court of Appeal of Louisiana, Third Circuit.
February 1, 1985.
Rehearing Denied March 8, 1985.
Writs Denied May 3, 1985.
*359 Jerry L. Finley, Baton Rouge, for defendant-appellant.
Whitehead & McCoy, Charles R. Whitehead, Jr., Natchitoches, for plaintiff-appellee.
Gist, Methvin, Hughes & Munsterman, H.B. Gist, III, Alexandria, for defendantsappellees.
Before FORET, STOKER, KNOLL, LABORDE and YELVERTON, JJ.
STOKER, Judge.
This is an appeal by the State of Louisiana, through the Department of Transportation and Development, from a trial court decision finding it negligent in maintaining a state highway and ordering it to pay damages to Mrs. Margaret Quinn, a driver injured in an accident on that highway. The State also appeals the trial court's dismissal from the case of Robert Machacek, the second driver involved in the accident, on the grounds he was not at fault.
This case involves a two-car accident which occurred on Louisiana Highway 6 on October 17, 1980. Mrs. Margaret Quinn was driving through rain in the westbound lane of the highway on her way from Pineville to Toledo Bend. About one-half mile west of the village of Robeline she entered an ascending curve to the right. At some point along the curve one or both of the right wheels of her car left the road surface and dropped to the shoulder. Mrs. Quinn tried several times to steer back onto the highway. There was some dropoff from the road to the shoulder, and Mrs. Quinn had trouble getting back on the road. When the car did regain the roadway, the vehicle was at an angle with the centerline of the road, and it was propelled into the eastbound lane where she was struck by an oncoming vehicle. Mrs. Quinn suffered various injuries as a result of the accident, including three broken ribs, broken clavicles, and a contusion to the head.
Mrs. Quinn and her husband brought this action against the State to recover her damages resulting from the accident, claiming there was a defect in the shoulder of the road. The State made a third party *360 demand against Robert Machacek, the driver of the second vehicle involved in the accident, for indemnity or contribution in the event he was found negligent.
The trial court granted Machacek's motion to dismiss after the plaintiffs and the defendant had put on their evidence. It then found "that the sole and proximate cause of this accident and the resultant injuries to Mrs. Quinn was the negligence of Department of Transportation and Development in failing to properly maintain the shoulder of Louisiana Highway 6 at the point of the accident." The plaintiffs were awarded general and special damages.
The State makes ten assignments of error which raise several issues which may be summarized as follows:
1) Was Mrs. Quinn negligent?
2) Was the State negligent?
3) Was Sylvanus Walker qualified as an expert in accident reconstruction and was his explanation based on the evidence?
4) Did the court err in admitting photographs taken two weeks after the accident or in admitting the entire deposition of Mrs. Quinn?
5) Did the court err in granting Machacek's motion for a directed verdict?
6) Did the court grant an excessive award?
We find that Mrs. Quinn and the State were both negligent. The court did not err in granting Machacek's motion for a directed verdict.
MRS. QUINN'S NEGLIGENCE
I.
In its first assignment of error the State contends that the trial court erred in ruling that Mrs. Quinn inadvertently left the roadway and was not negligent in doing so. The State's argument in this regard is most tenuous. Succinctly stated, it is that natural forces would cause Mrs. Quinn's vehicle to move to the left. Therefore, since she ran off the road on the right side, she must have steered it off the road. (The scientific argument is that when a vehicle is traveling in a curve to the right the centrifugal forces which act on the vehicle will cause the vehicle to move to the left and away from the right edge of the roadway.) Even granting this to be the case, it does not necessarily follow that the steering of the vehicle off the highway was an act of negligence which would bar recovery in this case. There is no evidence that her actions were not inadvertent. The State seeks to convince us that Mrs. Quinn over-steered her vehicle to the right and caused it to run off of the surfaced portion of the highway and onto the shoulder. The State characterizes such alleged over-steering as a "positive act" (discussed later in this opinion) in an effort to contra-distinguish such conduct from inadvertent acts. The argument is without merit.
The prevailing jurisprudence in Louisiana, Rue v. State, Dept. of Highways, 372 So. 2d 1197 (La.1979), holds that negligent driving on the part of a motorist who runs off the highway and encounters a defective shoulder caused by improper maintenance does not affect recovery. The reasoning applied in Rue is not limited to those situations in which the negligent or substandard conduct of the vehicle operator is inadvertent. In Rue the Supreme Court assumed the driver was negligent for purposes of deciding the case. All that is necessary under the rule of Rue is that the driver be unaware of the shoulder defect and the consequent danger presented. If the motorist is unaware, the motorist's right of recovery is unaffected in situations where the substandard conduct falls under the ambit of the rule. That rule stated in Rue and followed many times is:
"Under a simple `but-for' analysis the accident would not have occurred had either the Highway Department not been negligent in failing to maintain the shoulder or the plaintiff not been negligent (and for present purposes we assume her inadvertent meandering was negligence) in moving the vehicle onto the shoulder. But this does not conclude the inquiry. Focusing on plaintiff's `substandard' conduct *361 the question is whether the risk of injury from striking an unexpected, negligently maintained highway shoulder was a risk reasonably related to plaintiff's failure to drive entirely on the paved portion of the highway. We conclude that it was not. A motorist has a right to assume that a highway shoulder, the function of which is to accommodate motor vehicles intentionally or unintentionally driven thereon, is maintained in a reasonably safe condition. Conversely the Highway Department's duty to maintain a safe shoulder encompasses the foreseeable risk that for any number of reasons, including simple inadvertence, a motorist might find himself travelling on, or partially on, the shoulder.
"We conclude that plaintiff's conduct if indeed it was substandard is no bar to her recovery of damages occasioned chiefly because the Highway Department negligently failed to maintain a safe highway shoulder."
(The pronouncement in Rue was made at a time when contributory negligence acted as a bar to a plaintiff's right to recovery. Louisiana now follows the comparative negligence rule; a complete bar is not involved. LSA-C.C. art. 2323.)
We observe that over-steering to the right by motorists on a right hand curve (despite the centrifugal force to the contrary) is a common occurrence and we hold it is a foreseeable risk within the ambit of the rule laid down in Rue.
For the foregoing reasons the State's contentions as to alleged negligence of Mrs. Quinn in running off the highway are not relevant to the issues in this case. It is settled under Rue and cases which follow it that substandard conduct of a motor vehicle operator in running off the paved portion of a highway does not affect the right of recovery if the negligently maintained shoulders are a cause in fact of an accident which follows. With later interpretations to fit varying situations, the concept set forth in Rue has consistently been applied. One variation in the rule is that the substandard conduct of a motorist will affect recovery if the motorist is aware of a dangerous condition of a shoulder and fails to take proper precautions to avoid running off the highway. Sinitiere v. Lavergne, 391 So. 2d 821 (La.1980) and Edwards v. State Dept. of Transp. & Devel., 403 So. 2d 109 (La.App. 3rd Cir.1981), writ denied, 407 So. 2d 733 (La.1981). The distinction is pointed out in Booth v. Potashnick Construction Company, 420 So. 2d 512 (La.App.2d Cir.1982), writ denied, 423 So. 2d 1183 (La.1982).
In Booth the defect consisted of a dropoff caused by excavation of the shoulder during construction work being done to widen the highway. In Booth the State was not negligent because it had given proper notice of the construction and had appropriately posted warning signs. In addition to this holding on the negligence question, the Court of Appeal for the Second Circuit also refused to hold the State liable under principles of strict liability, LSA-C.C. art. 2317. However, the Court of Appeal added the following comments on which the State relies here:
"We point out, however, that even if strict liability applied in this case, the record amply supports the trial judge's characterization of plaintiff's behavior as constituting `victim fault' which precluded her recovery. This determination by the trial court was based upon the finding of fact (not clearly erroneous) that plaintiff's driving of her car from the road's hard surface into the excavated shoulder area `required a positive action of hers to go off the inside where the forces [gravitational or centrifugal] were the other way ... on what was a very wide roadway, considerably wider than the average.'"
We are not aware of what the trial court meant in Booth by the reference to a "positive action" on the part of Booth as driver. However, "victim fault" in strict liability considerations has been equated to contributory negligence on the part of the driver (in a case decided before comparative negligence was adopted in this State). Edwards v. State, Dept. of Transp. & Devel., supra. *362 Edwards was a road shoulder case, but the same conclusion has been reached in other kinds of factual contexts. Thus, victim fault in circumstances where a motorist drives off the paved portion of the highway should follow the principles of Rue. Hence, if a motorist negligently runs off the roadway without knowledge or warning of the shoulder defect, it should make no difference whether the case is approached as a negligence case or a strict liability case. In Rue, in considering the issue of contributory negligence, the Supreme Court assumed negligence on the part of the driver. Nevertheless, the Supreme Court said "the Highway Department's duty to maintain a safe shoulder encompasses the foreseeable risk that for any number of reasons, including simple inadvertence, a motorist might find himself traveling on, or partially on, the shoulder."
Considering our analysis, we do not find relevant, under the circumstances of this case, any speculation as to why Mrs. Quinn ran off the highway.
II.
In its second formal assignment of error the State contends that the trial court erred in ruling that Mrs. Quinn reacted instinctively when she "pulled her car back onto the road surface when she strayed off" and in failing to find her negligent in this regard.
Mrs. Quinn was traveling between 30 and 40 miles per hour when she left the traveled portion of the highway and ran onto the shoulder. Within a matter of five seconds she made three to four attempts to re-enter the traveled portion of the highway. She did not recall her speed at that time but had taken her foot off the accelerator. Her belief is that only her right rear wheel was off of the road surface and on the shoulder. She denied making any dramatic turn to the left. She gave the following testimony in court (Tr. 368):
"Q. What did you do then, Mrs. Quinn?
A. Well, I....
Q. In reference to the speed of your vehicle?
A. I took my foot off the accelerator. I didn't brake, because I was afraid that would send me into a skid. But, I did take my foot off the accelerator. And I tried to get back onto the highway. Not any frantic twisting of the wheel, but....because I knew that wasn't the right way to do it. And....
Q. What success did you have in returning to the highway by making this steering adjustment?
A. I'm sure I tried three or four times, until my wheels finally came back on the highway. There seemed to be something that was keeping my car from coming back on the highway.
Q. And then what happened when your vehicle mounted the highway, so to speak?
A. It went into a skid....into the other lane of traffic.
Q. And what happened?
A. I was hit. I could see the headlights of an approaching vehicle."
Mrs. Quinn further testified (Tr. 383):
"Q. How did you have to turn your steering wheel to be able to regain the roadway?
A. To the left. Do you mean....with....
Q. Was it a kind of a full jerking type motion, or did you just gradually turn it?
A. I....no, I didn't do a full jerking turn. That would have surely sent me into a skid. No, I was trying to ease back up on the highway. I thought I had three good wheels to get me there.
Q. So, you thought that you had three wheels on and only one wheel off?
A. Correct.
Q. You were not aware whether or not your front....
*363 A. It seemed to me there was just the one wheel that had dropped."
Mrs. Quinn was unable to estimate the distance she traveled on the shoulder before her vehicle (or at least the rear wheel) returned to the highway and went into a skid. She testified several times that her three or four attempts to regain the highway lasted only four or five seconds. She never applied her brakes but estimates that she slowed down as a result of taking her foot off the accelerator. She could not estimate her speed at the time of re-entry but did concede that it was in excess of 20 miles per hour.
From the above we conclude that Mrs. Quinn allowed her right rear wheel at least to drift off the surfaced portion of the highway designed for travel onto the muddy shoulder at a time that she was traveling at no less than 35 miles per hour. She evidently had the presence of mind not to apply her brakes precipitantly. She indicates she was aware of the danger of making a sudden jerking movement to the left in an effort to regain the surfaced portion of the highway. However, in the next four or five seconds after the rear wheel went off the roadway, Mrs. Quinn made at least three attempts to steer her vehicle off the shoulder back onto the road surface. She readily admits she may have made as many as four attempts.
At the time it was raining, and she had seen the headlights of the oncoming vehicle driven by Robert Machacek. She admits she was aware of the fact that there was a difference in the level of the shoulder and the road surface. Certainly by the time of the failure of her second attempt to return to the surfaced portion of the road, Mrs. Quinn was aware of the nature of the difficulty in which she found herself.
This second assignment is significant because it brings into consideration the "instinctive reaction" concept applied by the Louisiana Supreme Court in LeBlanc v. State, 419 So. 2d 853 (La.1982). Prior to LeBlanc the Supreme Court had made an important qualification to the rule laid down in Rue in the decision in Sinitiere v. Lavergne. Sinitiere involved a shoulder containing a dangerous drop-off. After running off of the highway the driver slowed his vehicle to 35-40 miles per hour but lost control when he attempted to reenter the highway by jumping a 3½ to 4 inch curb. Lavergne, the driver, had no previous knowledge of the low condition of the shoulder; therefore, his action in running off the roadway did not affect his recovery. However, Lavergne's attempted re-entry was treated differently and his negligence in this respect precluded recovery against the State. The Supreme Court stated if a driver is chargeable with knowledge of a shoulder defect which could cause injury and that person nevertheless disregards his own safety and the safety of others, the driver breaches his duty to himself and others in leaving the roadway. Because Lavergne had no knowledge of the shoulder condition at the time he ran off of the road, this rule of law did not apply.
On the other hand, the Supreme Court concluded from a review of the record that Lavergne "did breach the duty of reasonable care owed himself and other motorists in his vicinity at the time he attempted to re-enter the traveled portion of the highway."
On the basis of Sinitiere this Court of Appeal decided the LeBlanc case, 405 So. 2d 635 (La.App. 3rd Cir.1981). In LeBlanc, plaintiff Alma Kelly LeBlanc, ran off the roadway and quickly pulled back onto the highway and lost control. This Court of Appeal found Mrs. LeBlanc negligent in attempting re-entry to the highway. The Supreme Court reversed, 419 So. 2d 853, on the ground that Mrs. LeBlanc's action was instinctive and was therefore within the protection afforded by the rule announced in Rue. The Supreme Court held that it was error for this Court of Appeal to seek to extract rules of precedent from previous opinions of the high court. Instead, a court of appeal should evaluate the relationship between the State's duty to maintain road shoulders and the particular risk involved. The Supreme Court also stated: "The task of defining *364 the proper reach or thrust of a rule in its policy aspects is one that must be undertaken by the court in each case as it arises." After making a duty-risk analysis the Supreme Court stated:
"The basic question, therefore, is whether the risk of injury from a motorist's instinctive reaction to an unexpected four to six inch dropoff from a paved highway to its shoulder, produced by a combination of the Department's failure to provide a continuous even surface and the plaintiff's inadvertent straying onto the shoulder, is within the scope of protection of the rule of law which requires the Department to maintain safe highway shoulders."
The Supreme Court concluded that the overreaction was a part of the risk against which the legal duty was designed to protect.
The trial court in this case before us held that the action of Mrs. Quinn in attempting to get back onto the highway was an instinctive act. The trial court relied on LeBlanc v. State and quoted extensively from it. The defendant contends it was not an instinctive act, and the trial court erred in so holding. In deciding this issue our task is to approach this case on its own facts rather than attempting to fit the facts of this case under Sinitiere or LeBlanc. As admonished by the Supreme Court in LeBlanc, we must make a duty-risk analysis and determine whether the conduct of Mrs. Quinn under the circumstances falls within the protection of the rule associated with the State's duty to maintain shoulders of highways. Any attempt to mechanically extract a rule of precedent by focusing on the meaning of "instinctive" action may lead us into error.
Thus the issue should be framed as: Is the risk of injury from a motorist's reaction in straying from the surfaced portion of a highway so that at least a rear right wheel makes an unexpected 3½ inch dropoff onto a shoulder (presuming negligent shoulder maintenance is a cause in fact of the accident) following which the motorist persistently and unsuccessfully attempts to return to the highway within a four to five second span of time (to the extent of three to four attempts) within the scope of protection of the rule of law which requires the State to maintain safe highway shoulders?
We conclude that such a risk is not covered.
We therefore hold that the trial court was clearly wrong in applying the "instinctive reaction" rule of LeBlanc v. State, supra, to the facts of this case. The holding constitutes manifest error requiring reversal on this point.
Mrs. Quinn's testimony shows that she was at least aware of the danger of a precipitate jerking of her car to the left and indicates that she reflected on the danger of such a maneuver which she says she avoided. We conclude that at some point before she finally maneuvered her car onto the surfaced portion of the road, Mrs. Quinn was aware of the dangerous situation confronting her. Being aware of the shoulder defect she had encountered, Mrs. Quinn breached the duty of reasonable care owed to herself and others when she attempted to re-enter the traveled portion of the highway. Apparently there was nothing to prevent Mrs. Quinn from driving on the shoulder until she reduced her speed. She should have remained on the shoulder until she had reduced her speed enough to safely re-enter the traveled portion of the highway. Pitre v. Aetna Insurance Company, Inc. 456 So. 2d 626 (La.1984). Her duty to follow such a course was further increased by the fact that Mrs. Quinn was meeting the oncoming vehicle driven by Mr. Robert Machacek of which she was aware. Except for the collision with the Machacek vehicle, Mrs. Quinn might not have been injured in any way. See Estate of King v. Aetna Casualty & Surety Co., 427 So. 2d 902 (La.App. 3rd Cir.1983), writ denied, 433 So. 2d 1048 (La.1983).
III.
In its third assignment of error the State argues that it should have been allowed *365 to question Mrs. Quinn relative to provisions contained in the Louisiana Driver's Guide. Its contention is that it would be relevant concerning whether or not she was negligent. Since we have found her to be negligent, it is unnecessary to consider whether the trial court erred in not allowing the State to question Mrs. Quinn concerning her knowledge of provisions in the pamphlet.
Although the trial court would not allow the State to question Mrs. Quinn to determine whether she was familiar with the rules and warnings contained in the pamphlet, he did admit it into evidence, subject to plaintiff's objection. The pertinent portion of the guide (entitled Safe Driving In Louisiana) reads:
"Situation: When you run off the pavement on one side don't use your brakes. Straddle the edge of the pavement until the car has almost stopped. Then turn sharply and guide your car back onto the road. Don't try to steer back onto the road until your speed is less than 20 miles per hour."
Irrespective of the materiality of the fact that Mrs. Quinn may have read the pamphlet and the instruction quoted, the proposition has been virtually stated as law jurisprudentially (without specifying any maximum speed). See Pitre v. Aetna Insurance Company, Inc., supra. Thus, the duty to follow the prescribed course of conduct is legally imposed on drivers whether or not they are familiar with the pamphlet provision.
THE STATE'S NEGLIGENCE
The State contends the trial court erred when it found the State negligent in its maintenance of the shoulder of the road. We find no such error.
The trial judge found that there was an edge rut along the road surface that ranges from 2½ inches to 6 inches deep. There was testimony by Trooper Earl Townsend, Mr. and Mrs. A.J. Smith, and Mr. Luther Lott to support this finding. Trooper Townsend testified the rut measured 2½ inches to 3 inches deep. Mr. Lott testified it was 5 to 7 inches deep. Mrs. Smith testified it was 4 or 5 inches deep the next day, and Mr. Smith testified it was 4 to 8 inches deep. There was testimony that Mr. Smith had notified the DOTD of the condition of the shoulder.
The judge was not clearly wrong in finding that the State was negligent. In Brown v. Louisiana Department of Highways, 373 So. 2d 605 (La.App. 3rd Cir.1979), writ denied, 376 So. 2d 1269 (La.1979), this Court found the State negligent in failing to repair a drop-off from road to shoulder of over two inches. We cannot say the trial court erred in finding the State negligent in failing to repair an edge rut of 2½ to 6 inches.
WALKER'S EXPERT TESTIMONY
The State argues that the court erred in allowing Sylvanus Walker to testify as an expert in accident reconstruction, both as to his qualifications and his conclusions.
I.
Mr. Walker testified that he is a mechanical engineer employed by A.I.D. Consulting Engineers. He began part-time consulting with A.I.D. in 1973, worked full time for A.I.D. from 1977 to April, 1980, and then 30 hours a week from then until the time of the trial in December, 1982. Fifty to sixty percent of his work at A.I.D. has been in accident reconstruction, primarily surface vehicle accidents. In the absence of clear abuse of the trial court's discretion in accepting an expert witness, the appellate courts do not reject the testimony of the expert or find reversible error. Maxwell v. State, Department of Transportation, 391 So. 2d 1230 (La.App. 1st Cir. 1980). We find no abuse of discretion.
II.
The State devoted some eleven pages of its brief in an attempt to establish that Mr. Walker's conclusions were not valid. The State attacks any number of assumptions and opinions, particularly as they may vary from those of the investigating *366 officer. As a result, we are not certain as to what major points or expert opinions with which the State finds fault. We quote below a portion of the trial court's reasons for judgment which contains reference to Mr. Walker's testimony:
"As Mrs. Quinn approached this point [where she ran onto the shoulder] she saw the lights of an on-coming vehicle and moved her vehicle to the right portion of her travel lane and in so doing one or both of her right wheels inadvertently dropped from the road surface into the deep edge rut. She managed to get the right front wheel back onto the surface (if it had indeed ever gone off) but the right back wheel continued to slide along the outer edge of the road surface. A very plausible explanation for what then occurred was given by Mr. Sylvanus Caves Walker, a distinguished mechanical engineer who was qualified as an expert witness in the field of automobile accident analysis and reconstruction. According to Mr. Walker the right rear wheel was lubricated by mud, was in the deep edge rut and had no capacity for being steered therefore causing the wheel to slide along the edge of the road surface preventing the vehicle from regaining the highway by normal steering movements. As Mrs. Quinn instinctively attempted to steer back onto the highway the front of her vehicle got into an exaggerated angle as the right back wheel continued to hang in the deep rut and it was only when the rut shallowed that the right rear wheel remounted the road surface. When it did remount, her vehicle was at an exaggerated angle as a result of the backend sliding around and this coupled with the added traction from the wheel remounting propelled her into the eastbound lane where she was struck by the oncoming vehicle. The court concludes that so long as Mrs. Quinn's right rear wheel was in the portion of the rut which was 4" to 6" deep it would not remount the road surface and it was only when it reached a point of approximately 2½" depth that it remounted. It was trooper Townsend's estimate that the rut was 2½" deep at the point of reentry and it was the testimony of Mr. Smith and Mr. Lott that the rut at other points was up to 6" deep."
The explanation given by Mr. Walker, based on his assumptions, does not absolve Mrs. Quinn of fault or negligence in attempting to regain the highway. Mr. Walker accepted Mrs. Quinn's testimony that she made successive attempts to regain or remount the surface of the road. As summarized by the trial court in the quotation set forth above, Mr. Walker gave reasons for his conclusion that the right rear wheel of the Quinn vehicle was in continuous contact with and was rubbing along the edge of the surfaced portion of the highway. Among the factors assumed by Mr. Walker was that Mrs. Quinn was traveling at the rate of at least 30 m.p.h. at the time she actually re-entered the highway at which time her vehicle went out of control. (Tr. 435 and 450) He actually asserted that there probably was no deceleration between the time of the initial dropoff and the return to the pavement. (Tr. 436). Mr. Walker expressed the opinion that if Mrs. Quinn had slowed her vehicle down to a speed of 20 m.p.h. after running off the road "she might never have gotten the wheel back upon [the surface of the highway] at a real low steering angle." He could not conclude one way or the other whether she would have regained the highway. (Tr. 456) Mr. Walker also stated in this connection that oversteering on the part of Mrs. Quinn could cause loss of control under any conditions.
If we accept the opinions of Walker reviewed above, we conclude (as previously stated) that if Mrs. Quinn had not persisted in her attempts to regain the highway and had slowed down to 20 m.p.h. or less, her vehicle would not have been propelled across the highway at the angle described by Mr. Walker. In any event it would have been less likely that the vehicle would have taken this course. More important, it would not have occurred at the precise moment the Machacek vehicle arrived from the opposite direction so as to be in the *367 path of the Quinn vehicle as it went out of control. If, as Mr. Walker suggests, Mrs. Quinn had not made her attempts to return while traveling at 30 to 35 m.p.h. and slowed down, she might not have had sufficient speed to overcome a drop-off if the drop-off had continued. Had that happened, the collision with the Machacek vehicle would not have occurred.
In this discussion we are addressing the State's assignment of error which charges that the trial court erred in accepting the assumptions and conclusions of Mr. Walker on the ground that those assumptions and conclusions are at variance with those of the investigating officer. In our opinion, whether or not the trial court erred in this respect will not affect our conclusion that Mrs. Quinn was negligent and that her action in attempting to return to the highway was a cause in fact of the accident. Whether she had one wheel off on the shoulder or two, and whether or not one or both wheels were immediately next to the raised road surface material or further out onto the shoulder, the net effect is the same. Mrs. Quinn made successive attempts (two or three) to regain or remount which failed, but on the third or fourth attempt her vehicle did remount and went out of control. Speculations by the expert or trooper as to what happened specifically will not alter the fact that attempting to regain the surface of the highway at the speed at which the vehicle was traveling resulted in the vehicle going out of control.
We do not find reversible error because of any reliance of the trial court on Mr. Walker's testimony. Whether Mr. Walker's theory is correct or not, we nevertheless have to consider Mrs. Quinn's action in making successive attempts to re-enter the surfaced portion of the highway at a speed which was evidently excessive under the circumstances. The question is whether the trial court gave proper consideration to Mrs. Quinn's actions. As we have previously stated, the trial court erred in failing to find her at fault in these respects.
EXHIBITS
The State's fourth assignment of error was that the court erred in admitting photographs taken ten days to two weeks after the accident. The photographs were clearly identified as having been taken ten days to two weeks after the accident. The testimony in connection with the photographs was that they were taken in the general vicinity of the accident site. They did not show the conditions at the time of the accident, but were not introduced for that purpose. The Quinns did not contend that the pictures showed the exact place where Mrs. Quinn left the road or the place where she got back on. The court did not err in admitting the photographs.
The State then argues that the trial judge erred in allowing the plaintiff to introduce the entire deposition of Mrs. Quinn. Since the State did not object at trial to the admission of the deposition, this assignment of error cannot be considered. To preserve a party's right to urge error on appeal, it is necessary to make formal objection to admissibility or competency of evidence sought to be introduced. Coleman v. Occidental Life Insurance Company of North Carolina, 407 So. 2d 6 (La. App. 3rd Cir.1981), reversed on other grounds 418 So. 2d 645 (1982).
MOTION FOR DIRECTED VERDICT
The State, in its ninth assignment of error, contends the trial judge committed legal error when it granted the motion for directed verdict made by Robert Machacek, third party defendant, as to the third party demand of the State.
The State contends that the correct standard for granting a directed verdict is the standard set forth in Campbell v. Mouton, 373 So. 2d 237 (La.App. 3rd Cir. 1979) and as provided in LSA-C.C.P. art. 1810. In essence the State urges that Campbell v. Mouton requires that on a motion for a directed verdict the court must view and interpret the facts in the light most favorable to the plaintiff (third party plaintiff in this case). At the time of *368 trial Article 1810 of the Louisiana Code of Civil Procedure was divided into subparagraphs A and B. Article 1810(A) provided for directed verdicts in jury trials. That was the portion of the article under consideration in Campbell v. Mouton. Here, however, the trial was before the court sitting without a jury. Therefore the motion for directed verdict on behalf of third party defendant, Robert Machacek, was governed by Article 1810(B). Where a motion to dismiss is made in a nonjury trial under Article 1810(B) the preponderance of evidence standard applies. Sevin v. Shape Spa for Health and Beauty, Inc., 384 So. 2d 1011 (La.App. 4th Cir.1980) and Burrell v. Kirkpatrick, 410 So. 2d 1255 (La. App. 3rd Cir.1982).
The dismissal of Robert Machacek is supported by a preponderance of the evidence. There was no error on the part of the trial court in granting the motion to dismiss.
DAMAGES
In its final assignment of error the State contends the trial court erred in granting Mrs. Quinn an excessive award of $65,000 in general damages. The award seems to be on the high side but falls within the much discretion of the trial judge. Mrs. Quinn was not given specific damages for lost wages, but the trial judge considered the fact that she was forced into early retirement in awarding the general damages. The early retirement resulted in some loss of wages and probably a decrease in future retirement benefits. He also considered her past and future pain. Mrs. Quinn had several broken bones, a contusion to the head and lacerations on the hands requiring suturing. The broken clavicle caused her pain and loss of motion until she submitted to surgery two years after the accident. The surgery reduced the pain but did not completely eliminate it. The trial court also considered the drastic reduction in the quality of her life and the overall damage to her physical and mental well being. Mrs. Quinn played the piano in her job and for pleasure. She was unable to play after the accident due to her limited motion from the left shoulder. Since she still has pain in her shoulder, her piano playing and other activities involving the shoulder will be affected. In light of the factors considered, the general damages are not so excessive as to be reducible.
COMPARATIVE NEGLIGENCE
Since we have found that Mrs. Quinn and the State were both at fault in this case, it is necessary to determine the percentage of negligence attributable to each. Since all the facts are before this court we may not remand the case to the trial court for a decision on this point but must decide the question ourselves. Gonzales v. Xerox Corporation, 320 So. 2d 163 (La.1975). We find that the State and Mrs. Quinn were both at fault. Comparing the negligence, we consider that the maintenance duty of the State had been breached over some period of time, and its duty was well understood by it. The negligence of Mrs. Quinn consisted of an improper response to the hazard she encountered. Under the circumstances we conclude that the State was 80% at fault and Mrs. Quinn was 20% at fault.
The amount of damages the plaintiff can recover must be reduced by the percentage of negligence attributable to her. LSA-C.C. 2323. Mrs. Quinn can recover only 80% of the damages awarded by the trial court.
CONCLUSION
The decision of the trial court is reversed insofar as it found Mrs. Quinn free of negligence. She is found guilty of 20% of the negligence causing the accident.
In all other respects the judgment of the trial court is affirmed, subject to the reduction in the amount of the award necessitated by our finding of negligence on the part of Mrs. Quinn and the allocation of the costs. Accordingly the trial court judgment is amended so as to reduce to 80% the amount of general damages awarded by the trial court to Mrs. Quinn and to reduce the award of special damages to plaintiffs to 80% of the amount awarded by the trial *369 court. Costs of the litigation, both at the trial level and on this appeal, are assessed on the basis of 80% to the State and 20% to plaintiffs.
REVERSED IN PART, AFFIRMED IN PART.
KNOLL, Judge, concurring in part and dissenting in part.
I concur with the majority's finding that the Department of Transportation and Development (DOTD) was liable, however, I disagree that Mrs. Quinn was at fault. In order to reverse the trial court on this issue, the majority must find that the trial judge committed manifest error. Canter v. Koehring Company, 283 So. 2d 716 (La. 1973). The majority reverses without a finding of manifest error and applies its own evaluations and inferences.
In finding Mrs. Quinn 20% at fault, the only issue the majority considered was her unexpected 3½ inch drop-off onto a shoulder and her three or four unsuccessful attempts to return to the highway within a time span of four to five seconds. In its discussion of finding Mrs. Quinn negligent, the majority did not consider the following dangerous conditions that existed on the shoulder at that time: it was dark; there was a heavy rain; the shoulder was soft, water-soaked and very muddy; the shoulder was an ascending incline that received rainfall and gravel from above. The primary cause of the accident was the extreme muddy condition of the shoulder. The white striping that outlined the roadway was covered with mud. The State Trooper who arrived at the scene of the accident approximately ten to twenty minutes after the accident testified that the shoulder was wet, muddy and hazardous.
The shoulder drop-off in this particular case did not allow a safe gradual movement onto the roadway. Mud compounded by rain is recognized as an additional factor which renders highway surfaces slippery and slick. Smith v. Markham, Brown & L.L. Sanders, 61 So. 2d 515 (La.1952).
As well pointed out in Sinitiere v. Lavergne, 391 So. 2d 821 (La.1980), and mentioned in the majority, a court of appeal should evaluate the relationship between the State's duty to maintain road shoulders and the particular risk involved, and, not extract rules of precedent from previous opinions of the Supreme Court.
The majority clearly recognized the negligence of DOTD and stated: "Comparing the negligence, we consider that the maintenance duty of the State had been breached over some period of time, and its duty was well understood by it." (Emphasis added.) By finding Mrs. Quinn at fault, the majority failed to evaluate the relationship between the State's duty to maintain road shoulders and the particular risk involved.
For the foregoing reasons, I respectfully concur in part and dissent in part. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625432/ | 689 S.W.2d 496 (1985)
Donn R. WILSON, Appellant,
v.
INDUSTRIAL LEASING CORPORATION, Appellee.
No. 01-84-0705-CV.
Court of Appeals of Texas, Houston First District.
April 18, 1985.
Rehearing Denied April 18, 1985.
William J. Mays, Mays & Norwood, Houston, for appellant.
Jerry W. Bussell, Stafford, for appellee.
Before EVANS, C.J., and COHEN and DUNN, JJ.
OPINION
EVANS, Chief Justice.
The original opinion, filed February 28, 1985, is hereby withdrawn, and the following opinion is substituted:
This is a writ of error proceeding to review a post-answer default judgment. The principal question before us is whether the record shows that proper notice of the trial setting was provided to the appellant as required by Texas Rule of Civil Procedure 245. We find the record deficient in this respect, and we therefore reverse the trial court's judgment and remand the cause for a new trial.
The appellee, Industrial Leasing Corporation, sued the appellant, Donn R. Wilson, *497 and also named as defendants Robyn Wilson, Peter D'A. Cook, and Alida Cook, alleging breach of a five-year lease of restaurant equipment. The appellee alleged that the defendant Peter D'A. Cook executed the lease as president of the lessee, Old West Provision Company, and that all the named individual defendants were liable as guarantors of the lease. On March 12, 1984, the trial court entered a final judgment in favor of the appellee and against all named defendants other than Robyn Wilson, who had been severed from the action. The final judgment recites that the matter was heard on February 28, 1984, that the defendants Peter D'A. Cook and Alida Cook had been duly served with citation and wholly made default, and that the defendant Donn R. Wilson had filed an answer, but having been duly notified to appear, failed to appear in person or by attorney and wholly made default. The trial court's judgment awarded the appellee $50,826.47, plus $2,500 as attorney's fees.
A writ of error constitutes a direct attack on the default judgment, and for an appellant to obtain relief by this means, the invalidity of the judgment must be disclosed by the papers on file in the case. Pace Sports, Inc. v. Davis Brothers Publishing Co., 514 S.W.2d 247 (Tex.1974) (per curiam). The reviewing court will look only to the record on file in the trial court to determine invalidity. Fears v. Mechanical & Industrial Technicians, Inc., 654 S.W.2d 524, 528 (Tex.App.Tyler 1983, writ ref'd n.r.e.). The usual presumptions of a judgment's validity are not indulged in a writ of error proceeding. McKanna v. Edgar, 388 S.W.2d 927, 929-30 (Tex.1965).
The appellant contends in his first point of error that the trial court erred in entering judgment, because his counsel withdrew from the case without his knowledge, and after such withdrawal, he was never given notice of the trial setting.
Rule 245 of the Texas Rules of Civil Procedure provides that the court may set contested cases for trial on motion of any party, or on the court's own motion, with reasonable notice to the parties of not less than 10 days. Rule 21a recites that any notice, other than the original citation upon filing suit or as otherwise expressly provided, may be served by delivering a copy of the notice to the party to be served either in person, by registered or certified mail, or in any other manner the court directs. A failure to give this required notice constitutes a denial of a party's due process right to be heard in a contested case. Chow v. Dole, 677 S.W.2d 220 (Tex.App.Houston [1st Dist.] 1984, no writ); Williams v. Holley, 653 S.W.2d 639, 640 (Tex.App.Waco 1983, writ ref'd n.r.e.).
In the writ of error proceeding at bar, the recitation of due notice of the trial setting in the judgment constitutes some, but not conclusive, evidence that proper notice was given. See P. Bosco & Sons Contracting Corp. v. Conley, Lott, Nichols Machinery Co., 629 S.W.2d 142, 143 (Tex.App.Dallas 1982, writ ref'd n.r.e.); Roberts v. Mullen, 417 S.W.2d 74, 78 (Tex. Civ.App.Dallas 1967), aff'd, 423 S.W.2d 576 (Tex.1968). Where a judgment recitation is effectively rebutted by other evidence in the record, it is no longer taken to be true. See P. Bosco & Sons Contracting Corp., 629 S.W.2d at 143.
In the statement of facts of the trial proceeding, only a brief discussion between the court and the appellee's counsel relates to the issue of whether the appellant had actual or constructive notice of the trial setting, as required by rule 245:
THE COURT: All right, and what about the location of the Defendant, Donn Wilson?
MR. BUSSELL: My efforts to locate Donn Wilson consisted of sending correspondence to the last known address in Houston, and that letter was returned with a new forwarding address. Correspondence was sent out to the new forwarding address, which was returned with no forwarding address listed.
I then asked my client, Industrial Leasing, to make a search in order to locate Donn Wilson. That search resulted in an address in Sarasota, Florida. Correspondence *498 to that address was returned with no forwarding address.
A subsequent search by Industrial Leasing has led to Canada: "No Address," "Unknown."
Our efforts to locate Donn Wilson have been fruitless.
Of course, the other two, the Cooks, have been severed and defaulted.
And I also contacted one attorney that had previously represented Donn Wilson, and had been allowed to withdraw, and he had no information available as to the whereabouts of his former client.
Plaintiff rests.
The appellee's brief suggests that a "trial certification request" was sent by regular and by certified mail on January 28, 1983, to the appellant's last two known addresses in Houston and Florida and that both envelopes were returned with the notation, "Moved, Left No Address." We find several cancelled postmarked envelopes in the record. The appellee's brief further suggests that this information was communicated to the trial court at the certification hearing and that the case was certified for trial on February 20, 1984. However, these "facts" were not specifically developed at trial, where the appellee's counsel stated only that "correspondence" sent to the appellant had been returned. Although a letter from the appellee's attorney to the clerk of the 269th District Court refers to an enclosed "trial certification request," we do not find such a request in the record.
There is no evidence, moreover, that proper notice of the actual trial setting was given pursuant to rule 245. The testimony at trial that all correspondence sent to the appellant was returned as undeliverable indicates that the appellant had no actual notice of the trial date. As discussed above, the appellee's brief suggests that constructive notice of the trial certification request was attempted, but this court has previously held that notice of a trial certification request, standing alone, does not constitute sufficient notice of the trial setting as required by rule 245. Chow v. Dole, 677 S.W.2d 220.
Since there was no evidence that the appellant received actual notice of the trial date, nor was there evidence of sufficient constructive notice of the trial setting, we conclude that the record does not demonstrate that the appellant had adequate and reasonable notice of the trial date pursuant to rules 245 and 21a. We sustain the first point of error. Because of this disposition, we need not reach the appellant's other points of error.
In view of further proceedings, however, we briefly consider the second point of error, in which the appellant contends that judgment should not have been rendered against him as a guarantor of the lease, since no judgment was obtained against the contract's primary obligor, Old West Provision Company. We note that the terms of the guaranty agreement expressly waive any right to have the primary obligor joined in a suit as a party defendant. Such agreements are valid and enforceable. See Yandell v. Tarrant State Bank, 538 S.W.2d 684, 687-88 (Tex.Civ.App.Fort Worth 1976, writ ref'd n.r.e.). We overrule the second point of error.
The judgment of the trial court is reversed, and the cause is remanded for a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625450/ | 689 S.W.2d 893 (1985)
The STATE of Texas ex rel. Henry WADE, Criminal District Attorney, Dallas County, Petitioner,
v.
Honorable Richard MAYS, Judge, 204th District Court, Dallas County, Respondent.
No. 69329.
Court of Criminal Appeals of Texas, En Banc.
February 6, 1985.
Rehearing Denied May 29, 1985.
*894 Hal E. Turley, Sharon L. Caldwell, Dallas, for respondent.
Richard A. Anderson, Dallas, for the interested party Cathy Cody.
Jan E. Hemphill, Dallas, for the interested party Joe Cody, Jr.
Henry Wade, Dist. Atty. and James R. Nelson, Asst. Dist. Atty., Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION
CLINTON, Judge.
This cause seeks to invoke the original subject matter jurisdiction of the Court provided by Tex. Const. V, § 5,[1] and is *895 denominated an original application for writ of prohibition by the petitioner. The salient undisputed facts follow.
I.
COMMENCEMENT OF CRIMINAL ACTION
On March 12, 1984,[2] one Joseph Jones was apparently killed during the course of an aggravated robbery. On the same day, Joe and Cathy Cody were arrested in connection with this offense.
THE MURDER CHARGES
Joe and Cathy Cody were subsequently, in April, indicted separately[3] for the murder of Joseph Jones. On the last day of April the State filed an announcement of ready in Joe Cody's murder case; in the middle of May, an announcement of ready was filed in the Cathy Cody murder prosecution.
THE AGGRAVATED ROBBERY CHARGES
Both defendants were, in midJuly, additionally indicted for the March 12 aggravated robbery of Joseph Jones.[4] The State filed an announcement of ready in the Cathy Cody aggravated robbery case on July 31, which was 140 days after "the commencement of the criminal action" against her.[5] An announcement of ready in the Joe Cody aggravated robbery case was filed on August 2, which was 143 days after "the commencement of the criminal action" against him.
DISMISSAL OF THE AGGRAVATED ROBBERIES
Both Joe and Cathy Cody thereafter in August moved the court to set aside their indictments for aggravated robbery, alleging the State's failure to be ready thereon within 120 days of their arrests for the offense of murder, arising out of the same transaction, entitled them to discharge under Article 32A.02, supra, § 1.[6]
The Honorable Richard Mays, Judge of the 204th Judicial District Court and Respondent herein, granted these motions and discharged each defendant from the aggravated robbery indictments, apparently without any contest or argument from the State.[7]
MOTIONS TO DISMISS THE MURDERS[8]
Very shortly after Respondent dismissed the aggravated robbery indictments *896 against the Codys, each defendant moved the court in September to dismiss also the murder charges pending against them on the authority of Article 28.061, V.A.C.C.P., which provides:
"If a motion to set aside an indictment,... for failure to provide a speedy trial as required by Article 32A.02 is sustained, the court shall discharge the defendant. A discharge under this article is a bar to any further prosecution for the offense discharged or for any other offense arising out of the same transaction."
A hearing was convened on these motions at which time it was stipulated by the parties that the murder charges arose out of the same transaction as the previously dismissed aggravated robbery charges.
Respondent announced his belief that under the mandatory language of Article 28.061, supra, he had no discretion to do anything other than grant the motions and discharge the Codys.
The State, however, contended the trial court need not comply with Article 28.061, supra, because the caption to the legislation creating the Speedy Trial Act [hereinafter, "the Act"] is defective for reasons discussed in Ex parte Crisp, 661 S.W.2d 944 (Tex.Cr.App.1983) (Opinion on motion for rehearing); therefore the Act itself is void and of no effect. In the alternative, the state argued thatin the event the Act is not voidRespondent erred in dismissing the aggravated robbery charges against the Codys since they arose from the same transaction as the murder charges on which the State was timely ready; thus, under the "transactional approach" taken by this Court in Kalish v. State, 662 S.W.2d 595 (Tex.Cr.App.1983), once the State was ready on the original charge, the State could subsequently bring additional charges without violating the Act.
Counsel for Cathy Cody agreed that Kalish, supra, was controlling, but argued it mandates dismissal of any further prosecution arising out of the same transaction as the aggravated robbery charges. He also contended the State had waived this argument by failure to raise it at the time Respondent dismissed the robbery charges.
Attorney for Joe Cody contended that Kalish, supra, notwithstanding, the unambiguous language of Article 28.061, "doesn't talk at all about which charge comes first and what they are ready on or not ready on;" therefore, the trial court was required to follow the clear dictates of the Legislature. He also argued that when the State, through its Legislature, passes an act into law and a citizen relies on it, the State, through its enforcers of the law (prosecutors), is attempting to deny due process of law "by coming in and saying, in effect, `King's X, Joe Cody; you can't rely on the law the State of Texas passed, because we didn't get a complete caption on the bill.'"
After hearing these arguments Respondent informed the parties that Article 28.061 and Kalish, both supra, barred prosecution of the murder cases and therefore required dismissal of the murder indictments against the Codys. He then announced his intention to enter written orders to such effect within 10 days. On request of the State, Respondent agreed to stay his ruling so that the State could seek extraordinary remedies from this Court. Respondent then admitted Joe and Cathy Cody to bail.
II.
In this Court, all interested parties have filed briefs in which they essentially elaborate on their positions in the court below; *897 therefore, we will not reiterate those arguments.
NATURE OF THE REMEDY SOUGHT
Effective January 1, 1978, Art. 5, § 5, Tex. Const. was amended in order to confer upon the Court powers to grant extraordinary writs in cases "regarding criminal law matters," in addition to the previously existent mandamus and prohibition authority to enforce its own jurisdiction. See generally State ex rel. Vance v. Routt, 571 S.W.2d 903 (Tex.Cr.App.1978); Thomas v. Stevenson, 561 S.W.2d 845 (Tex. Cr.App.1978) (Onion, P.J., concurring).
In determining the specific nature of the extraordinary relief sought, this Court will not be limited by the denomination of petitioner's pleadings, but will look to the essence of the pleadings, including the prayers, as well as the record before us. See, e.g., Broggi v. Curry, 571 S.W.2d 940 (Tex.Cr.App.1978); see also Vance v. Clawson, 465 S.W.2d 164 (Tex.Cr. App.1971); and City of Dallas v. Dixon, 365 S.W.2d 919 (Tex.1963).
The essential difference between the writ of prohibition and the writ of mandamus is that the former issues to prevent the commission of a future act whereas the latter operates to undo or nullify an act already performed; the former will not be granted when the act sought to be prevented is already done, but will lie when such act is not a full, complete and accomplished judicial act. White v. Reiter, 640 S.W.2d 586 (Tex.Cr.App.1982); Garcia v. Dial, 596 S.W.2d 524 (Tex.Cr.App.1980); Smith v. Blackwell, 500 S.W.2d 97 (Tex.Cr. App.1973).
It is clear from the record that the State seeks to have us prevent Respondent from dismissing the murder indictments pending against Joe and Cathy Cody, and the relief sought is therefore prohibition.
ENTITLEMENT TO RELIEF
"The line between writs of mandamus and prohibition is often thin, e.g., State ex. rel. Vance v. Clawson, 465 S.W.2d 164, 168-169 (Tex.Cr.App.1971), but entitlement to either must be shown to be `clear and indisputable,' Will v. United States, 389 U.S. 90, 96, 88 S. Ct. 269, 274, 19 L. Ed. 2d 305 (1967); Denison v. Sheppard, 122 Tex. 445, 60 S.W.2d 1031 (1933); `unequivocal,' Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138, 1151 (1939); `abundantly clear,' Meissner v. Fuchs, 290 S.W.2d 941, 944 (Tex.Civ.App. Galveston 1956) error dismissed. * * [T]he writ will not issue `if the right is doubtful' nor `if there is any substantial defect in the proof of the ... right,' English v. Treaccar, 153 S.W.2d 539, 541 (Tex.Civ.App.Galveston 1941). We agree that the writ `issues to require the execution of a matter whose merit is beyond dispute....' Wortham v. Walker, [133 Tex. 255], 128 S.W.2d at 1151 [1939]."
Knowles v. Scofield, 598 S.W.2d 854, 860 (Tex.Cr.App.1980).[9]
Here, the State's only allegation as to its entitlement to the relief sought is that the "relevant facts are completely undisputed [and] the question resolves itself to a pure question of law." In these regards, the State is correct. Accordingly, the threshold questions we confront are whether this *898 condition of the dispute before us entitles the State, as a matter of indisputable right, to the extraordinary relief it seeks, and, if not, whether, the action sought to be prevented otherwise constitutes an unequivocal duty devolving on Respondent such that his failure to desist constitutes a proper subject of the exercise of our extraordinary writ authority.
CLEAR LEGAL RIGHT TO DENIAL OF THE MOTIONS TO DISMISS?
The State is correct in its implied observation that disputed facts automatically defeat a petitioner's entitlement to extraordinary relief, e.g., Knowles v. Scofield, supra; it is also true that there are no disputes as to the facts here. But whether entitlement is demonstrated by the sole presentation of a hotly contested unsettled "question of law" is another matter. For, the law is clear that petitioner must show no impediment to the doing of the act sought to be compelled or prohibited and must also show he has an absolute right to such a judgment. Matthaei v. Clark, 110 Tex. 114, 216 S.W. 856 (1919).
We are not persuaded that any litigant has an absolute right to have a court rule in his favor on a claim such as that advanced by the State in this cause. Upon consideration of the motions before him and the State's arguments in opposition, Respondent was required to consider and resolve several questions of law before making his ultimate rulings as to dismissal.[10] Each of these judicial "determinations" Respondent was required to make before ruling was an "impediment" to the establishment any "right" to the relief sought, within the meaning of extraordinary writ law.[11] See City of Galveston v. Mann, 135 Tex. 319, 143 S.W.2d 1028 (1940) [wherein writ will not issue if right is contingent upon other acts of relator or others].
Furthermore, even the State concedes that the caption to the Act may not be void in its alternative argument which is contingent upon just such a determination by this Court. Surely, if the petitioner concedes the act (ruling) of Respondent complained of may be correct in this regard, he has not even stated a prima facie adequate claim for extraordinary relief much less demonstrated a clear legal "right" to the trial court's ruling in his favor. Wortham v. Walker, supra. An extraordinary writ will not be used to establish a claim of uncertain merit. Busby v. Rabe, 638 S.W.2d 235 (Tex.App.Tyler 1982, no writ).
CLEAR LEGAL DUTY ON PART OF RESPONDENT TO DENY THE MOTIONS TO DISMISS?
We turn now to the question of whether petitioner has established that Respondent had an unequivocal duty to rule in the State's favor on the motions to dismiss.
Generally, extraordinary relief will not issue unless the very act (result) sought by the petitioner is manifestly "ministerial" in nature on the part of Respondent as opposed to "judicial" or "discretionary." Vance v. Routt, supra; O'Meara v. Moore, 142 Tex. 350, 178 S.W.2d 510 (1944); cf. Swann v. Wheeler, 126 Tex. 167, 86 S.W.2d 735 (Tex.Com.App.1935). Thus, an extraordinary writ is an order directing a public official to perform a duty exacted by law and will not issue to enforce a duty that is to any degree debatable. In re Corrugated Container Antitrust Litigation, 614 F.2d 958 (CA5 1980) cert. den. sub. nom. Mead Corp. v. Adams Extract Co., 449 U.S. 888, 101 S. Ct. 244, 66 L. Ed. 2d 114 (1980).
*899 A "duty imposed on an official by law" means, in this context, one which is "clearly fixed and required by law;" Oney v. Ammerman, 458 S.W.2d 54 (Tex. 1970); The duty must be shown to be "unequivocal," "unconditional" and "present," City of McAllen v. Daniel, 147 Tex. 62, 211 S.W.2d 944 (1948); it must be shown that to do other than that sought by relator would be a clear violation of official duty; e.g., King v. Moorhead, 203 S.W.2d 940 (Tex.Civ.App.Galveston 1947, no writ).
As in this case, the petitioner in Texas Department of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex.Cr.App.1981), was able to demonstrate both that no other adequate remedy at law, was available, and that the question before Judge Dalehite distilled to only a question of law. Judge W.C. Davis, in rejecting the claim for the Court, noted there:
"An act is said to be [subject to extraordinary relief] when the law clearly spells out the duty to be performed by an official and does so with such certainty that nothing is left to the exercise of discretion or judgment. Forbes v. City of Houston, 356 S.W.2d 709 (Tex.Civ.App. 1962).
See also Texas Board of Pardons & Paroles v. Miller, 590 S.W.2d 142 (Tex.Cr. App.1979); and 37 Tex.Jur.2d Mandamus § 47.
It is a corollary to all stated above that when there is any reason which would justify the action of the court, a writ requiring the court to do otherwise cannot issue.[12]
In this case, it is apparent that the several legal determinations Respondent was required to make prior to issuing his ultimate rulings on the motions to dismiss, necessarily involved the exercise of a classic judicial function, as opposed to a function in the nature of a ministerial act.
Moreover, we do not find, nor do we read petitioner in the instant case to be seriously contending, that Judge Mays was "unequivocally required by law" to rule in the State's favor on all the issues before him; that Judge Mays' intended ruling would be a "clear violation of his official duty;" that Judge Mays' failure to rule in the State's favor on the motions to dismiss would "exceed his authority," e.g., Holmes v. Denson, 671 S.W.2d 896 (Tex.Cr.App.1984), would be a violation of a "manifest duty," see Texas Board of Pardons & Paroles v. Miller, supra, or a "gross abuse of discretion," State v. Sewell, 487 S.W.2d 716 (Tex. 1972); Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677 (1956), amounting to "fraud, caprice or a purely arbitrary decision without reason." See, e.g., White v. Reiter, supra; see also Southland-Greyhound Lines, Inc. v. Richardson, 126 Tex. 118, 86 S.W.2d 731 (Tex.Com.App.1935); Bush v. Vela, 535 S.W.2d 803 (Tex.Civ.App.Corpus Christi 1976, no writ).
III.
The only clear right the petitioner has established here is the State's right to have Respondent rule on (either accept or reject) its claims that the Codys' motions to dismiss should be denied; the only clear legal duty on Respondent the petitioner has shown, is the duty to rule on (either accept or reject) the State's arguments in opposition to the Codys' motions to dismiss. We hold the record establishes Respondent has in all things performed this duty and the State's unequivocal right has therefore *900 been honored. It follows that an extraordinary writ will not issue when it is necessary to try and decide conflicting claims or collateral questions which require legal controversy for their settlement. See Porth v. Currie, 613 S.W.2d 534 (Tex.Civ. App.Tyler 1981, no writ); see also 55 CJS Mandamus §§ 53, 58, 59.
Indeed, to hold the mere presentation of a pure but unsettled question of law alone constitutes an adequate basis for exercise of our extraordinary writ authority would grossly undermine and distort the historical function of that authority in our system of justice; such a holding would intolerably erode the authority and unique role of our trial judges within that system. See generally Garcia v. Dial, supra; and Holmes v. Denson, supra, [wherein the nature of the jurisdiction of our criminal district trial courts is assayed].
In sum, we decline petitioner's invitation and adhere to the well settled principle that petitioner's failure to establish an indisputable right to have Respondent deny the Codys' motions to dismiss, constitutes a failure to invoke this Court's extraordinary writ authority.
Accordingly, the application for writ of prohibition is denied.
ONION, P.J., and McCORMICK and WHITE, JJ., dissent.
W.C. DAVIS, J., not participating.
NOTES
[1] "Subject to such regulations as may be prescribed by law, the Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas corpus, and in criminal law matters, the writs of mandamus, procedendo, prohibition, certiorari...."
[2] All events occurred in 1984; we will therefore delete the year throughout. Dates of events will not be specified unless of consequence.
[3] In Cause Numbers F84-73011-RQ and F84-73010-RQ, respectively.
[4] Joe Cody in Cause Number F84-91898-Q and Cathy Cody in Cause Number F84-91897-SQ.
[5] Article 32A.02, V.A.C.C.P., provides in pertinent part:
"Sec. 2(a) Except as provided in Subsections (b) and (c) of this section, a criminal action commences for purposes of this article when... prior to the filing [of an indictment, information or complaint] the defendant is either detained in custody or released on bail or personal bond to answer for the same offense or, any other offense arising out of the same transaction, in which event the criminal action commences when he is arrested."
(All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)
[6] "Sec. 1. A court shall grant a motion to set aside an indictment, ... if the State is not ready for trial within:
(1) 120 days of the commencement of a criminal action if the defendant is accused of a felony; * * *"
[7] The State now contends Respondent erred in granting these motions, but there is no dispute between briefs of all interested parties filed in this Court that the State did not raise such a complaint at the time the indictments were dismissed. The respondent trial judge also contends the State waived this complaint by failing to pursue objections to the rulings at the time they were made.
[8] The records before us indicate that four days after Respondent dismissed the aggravated robbery indictment against Joe Cody, a second murder indictment was returned against him for the murder of Joseph Jones in Cause No. F84-92351-Q, which differed only on the enhancement allegations. Apparently, the first murder indictment, Cause No. F84-73011-RQ, against Joe was never dismissed. Thus, his counsel has filed duplicate motions and Respondent has made duplicate rulings in both causes since the return of the second murder indictment.
Since the original murder indictment was never dismissed, we will, for the sake of clarity, continue to refer only to it as "the murder charge." But everything we say regarding it applies with equal force to the second murder indictment against Joe Cody.
[9] That the petitioner has no other adequate remedy at law is the second prong of his threshold burden of proof in extraordinary proceedings. In the instant case, there is no question that if Respondent were to dismiss the subject murder indictments against the Codys, the State would have no other remedy whatsoever. See generally Garcia v. Dial, supra; see also Art. V, § 26, Tex. Const.
For this reasoneven if the State could demonstrate Respondent's dismissal of the aggravated robbery indictments was in errorthat issue cannot be relitigated here, nor form the basis for the relief sought today. Holmes v. Denson, 671 S.W.2d 896 (Tex.Cr.App.1984).
[10] See arguments of the parties set out in part I, ante, at 896-897.
[11] Petitioner must make a clear showing that under certain facts, the law is subject to but one interpretation; he then must show that undisputed facts exist which entitle him unequivocally to a right flowing from that single interpretation. Knowles v. Scofield, supra.
[12] "The remedy ... is summary, extraordinary, harsh and drastic, and when it is resorted to for the purpose of compelling a court to render a particular judgment when that court thinks [otherwise], its enforcement is attended by some delicacy. Accordingly, we believe that when there is any reason which could justify the action of the court ..., a writ ... requiring him to enter a judgment cannot be issued."
Tide Products, Inc. v. Braswell, 586 S.W.2d 146, 147 (Tex.Civ.App.Texarkana 1979, no writ), quoting Southwestern Bell Tel. Co. v. Shell, 266 S.W.2d 476, 478 (Tex.Civ.App.Ft. Worth 1954, no writ). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625435/ | 464 So. 2d 689 (1985)
Warren Gregory FARROW, Jr., Appellant,
v.
STATE of Florida, Appellee.
No. 84-1127.
District Court of Appeal of Florida, Fifth District.
March 7, 1985.
James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Gary W. Tinsley, Asst. Atty. Gen., Daytona Beach, for appellee.
SHARP, Judge.
Farrow appeals from his sentence imposed under the Sentencing Guidelines, Fla. *690 R.Crim.P. 3.701, for the crime of escape. § 944.40, Fla. Stat. (1983). He argues the trial court erred in failing to use a single scoresheet for all the offenses for which Farrow was then being sentenced, rather than separate ones for each offense. Fla. R.Crim.P. 3.701(d)(1). This appears to us to be harmless error since, in this case, the sentences received by appellant were within the correct presumptive sentence range had only one scoresheet been used. In any event, Farrow's counsel agreed to this sentencing procedure.
At the sentencing hearing, the trial judge stated that he wished to make the escape sentence run concurrently with the North Carolina sentences appellant was currently serving if he had the discretion to do so.[1] However, the court did not specify in its written judgment whether the sentence was to run concurrently or consecutively. Appellant argues that the trial judge should have imposed a concurrent sentence.
We think the trial court was correct in imposing a consecutive sentence.[2] Section 944.40, provides, in pertinent part, "the punishment of imprisonment imposed under this section shall run consecutively to any former sentence imposed upon any prisoner." Construing a prior statute containing similar wording, the Florida Supreme Court ruled:
We construe the quoted provision to mean that any sentence for escape must run consecutively to any other sentence or sentences to which the offender is subject at the time of the escape. The obvious intent of the Legislature was to prescribe a penalty which would be added to all penalties previously imposed as a deterrent to a prisoner inclined to break jail.[3]
Tirko v. Wainwright, 178 So. 2d 697, 698 (Fla. 1965); see also White v. State, 240 So. 2d 150 (Fla. 1970).
This statute controls over any apparent conflict with section 921.16, Florida Statutes (1983). That statute provides, in part, "a county court or circuit court of this state may direct that the sentence imposed by such court be served concurrently with the sentence imposed by a court of another state or of the United States." The latter is a general sentencing statute which does not deal with the crime of escape specifically. A well-settled rule of statutory construction is that "a special statute covering a particular subject matter is controlling over a general statutory provision covering the same and other subjects in general terms." Adams v. Culver, 111 So. 2d 665, 667 (Fla. 1959); Pedroso v. State, 450 So. 2d 902 (Fla. 3d DCA 1984). Therefore, the judgment and sentence appealed from are
AFFIRMED.
COBB, C.J., and FRANK D. UPCHURCH, Jr., J., concur.
NOTES
[1] Farrow was serving fifty years in North Carolina for two burglaries, and was extradited to Florida to stand trial on charges of burglary and sexual battery. He escaped from an airplane in which he was being transported when it touched down in Seminole County.
[2] Section 921.16(1), Florida Statutes (1983), provides, in pertinent part, "sentences of imprisonment for offenses not charged in the same ... information ... shall be served consecutively unless the court directs that two or more sentences be served concurrently."
[3] The former statute read that the punishment of imprisonment "shall be in addition to any former sentence imposed upon any prisoner convicted hereunder." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625436/ | 25 So. 3d 675 (2010)
Amanda HARRELL, Appellant,
v.
CITRUS COUNTY SCHOOL BOARD and FSBIT Insurance Trust, Appellees.
No. 1D09-3331.
District Court of Appeal of Florida, First District.
January 15, 2010.
*676 James E. Hack, St. Petersburg, and Bill McCabe, Longwood, for Appellant.
Pamela J. Cox and Jodi K. Mustoe of Cox & Mustoe, P.A., Maitland, for Appellees.
PER CURIAM.
Claimant challenges an order of the Judge of Compensation Claims (JCC) denying her request for a "one-time change" of orthopedist and her claim for temporary partial disability (TPD) benefits through the date of the final hearing. Because competent substantial evidence supports the JCC's denial of TPD benefits, we affirm on this issue. The JCC erred as a matter of law and fact, however, by denying Claimant's request for a change in physician. Accordingly, we reverse on this issue.
On February 20, 2007, Claimant suffered injuries to her shoulder and back. The employer/carrier (E/C) provided treatment, and Claimant was eventually referred to Dr. Lowell, an authorized orthopedic physician. On October 9, 2008, Claimant filed a formal grievance form with the E/C requesting, in part, authorization for a change of orthopedist because she was dissatisfied with Dr. Lowell. On October 14, 2008, counsel for the E/C sent Claimant a letter agreeing to authorize a new orthopedist. Specifically, the letter stated in full:
The [E/C] is in receipt of your Grievance regarding [Amanda Harrell]. They have agreed to authorize a one-time *677 change of orthopedic doctors. They are in the [process] of scheduling that appointment and you will be advised of the date and time of the appointment under separate cover. If you have any questions, please do not hesitate to contact me.
Subsequently, on October 28, 2008, the E/C sent a second letter to Claimant advising Claimant of her appointment with Dr. Parr on November 14, 2008.
On November 19, 2008, Claimant filed a petition for benefits seeking, in part, authorization of Dr. Simon based on the E/C's failure to timely authorize a new orthopedic physician. The E/C defended against the claim by arguing it sent a timely letter to Claimant authorizing Claimant's request for a "one-time change" in orthopedist.
In an order dated June 4, 2009, the JCC denied Claimant's request for a change in orthopedic physician, finding the industrial accident was not the major contributing cause (MCC) of Claimant's symptoms. Section 440.13(2)(f), Florida Statutes (2006), provides in pertinent part:
Upon the written request of the employee, the carrier shall give the employee the opportunity for one change of physician during the course of treatment for any one accident. . . . The carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within 5 days after receipt of the request. If the carrier fails to provide a change of physician as requested by the employee, the employee may select the physician and such physician shall be considered authorized if the treatment being provided is compensable and medically necessary.
We have previously held that "the use of the word `shall' in . . . section 440.13(2)(f) means that this one-time change is mandatory, regardless of whether the initial authorized doctor opines that a compensable accident is no longer the MCC of a claimant's need for treatment." Providence Prop. & Cas. v. Wilson, 990 So. 2d 1224, 1225 (Fla. 1st DCA 2008). Likewise, this change is mandatory "regardless of the E/C's position as to either the change of physician or the new physician's treatment." Dawson v. Clerk of Circuit Court-Hillsborough County, 991 So. 2d 407, 409 (Fla. 1st DCA 2008). Accordingly, the JCC erred in denying Claimant's request for a change of orthopedic physicians based on the finding that the work-related accident was not the MCC of Claimant's need for treatment.
In the order, the JCC made factual findings regarding the E/C's purported authorization for a change in orthopedic physicians. Specifically, the JCC found "Claimant requested authorization for a change in orthopedics on October 9, 2008," and that the E/C "advised Claimant's counsel on October 14, 2008, that Dr. Parr was being provided as Claimant's one-time change in physicians." No competent substantial evidence supports this latter finding.
The E/C's October 14, 2008, letter, quoted above, makes no mention of Dr. Parr or any other physician authorized to treat Claimant. Rather, the letter simply states that the E/C "agreed to authorize a one-time change of orthopedic doctors." The record demonstrates Claimant was not advised of Dr. Parr's authorization until October 28, 2008nineteen days after Claimant's October 9th written request. Because the E/C failed to authorize a new physician within five days of Claimant's written request, the E/C failed to comply with the requirements of section 440.13(2)(f).
Section 440.13(2)(f), Florida Statutes (2006), specifically states that "[t]he *678 carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within 5 days after receipt of the request." (emphasis added). To timely respond to a claimant's request, an E/C is not required to schedule an appointment with the newly authorized physician. See Dorsch v. Hunt, 15 So. 3d 836 (Fla. 1st DCA 2009) (explaining E/C is not required to actually schedule an appointment to comply with its statutory duty to furnish medical treatment at claimant's request). Based on a plain reading of the statute, an E/C is required, however, to authorize at least one specific physician within five days of a claimant's request.
Simply acknowledging a claimant's statutory entitlement is not sufficient. See Great Am. Indem. Co. v. Williams, 85 So. 2d 619, 622 (Fla.1956). Allowing an E/C to comply with its statutory duty by generally acknowledging its statutory obligation to provide a change would emasculate the statute and the five-day time period. As such, compliance with section 440.13(2)(f) requires an E/C to name at least one physician not professionally affiliated with the previous physician within five days of a claimant's written request.
Here, in its letter dated October 14, 2008, the E/C merely "agreed to authorize a one-time change" of physicians. The E/C failed to authorize a specific alternative physician within the five-day time period. The record demonstrates that the E/C did not advise Claimant it selected Dr. Parr until October 28, 2008nineteen days after Claimant requested a new physician. Consequently, Claimant was entitled to select her own physician. See § 440.13(2)(f), Fla. Stat. (2006). Therefore, the JCC erred in denying Claimant's request for a change of orthopedic physician, and this portion of the order must be reversed.
Claimant's second argument on appeal concerns the JCC's denial of TPD benefits from September 13, 2008, through the date of the final hearing. The JCC accepted the unrefuted evidence that Claimant reached maximum medical improvement (MMI) on September 12, 2008, and, consequently, denied TPD benefits beyond that date. Competent substantial evidence supports the JCC's finding that Claimant reached MMI on September 13, 2008. Therefore, competent substantial evidence supports the JCC's denial of TPD benefits from that point through the date of the final hearing. See § 440.15(2)(a), Fla. Stat. (2006) ("Once the employee reaches. . . the date of [MMI], . . . temporary disability benefits shall cease. . . ."). Because Claimant provides no factual or legal basis to reverse the JCC's findings on this issue, we affirm.
Based on the foregoing, we AFFIRM the JCC's denial of TPD benefits. We REVERSE that portion of the order denying Claimant's request for a change of orthopedist and REMAND for proceedings consistent with this opinion.
WEBSTER, PADOVANO, and ROWE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625437/ | 689 S.W.2d 537 (1985)
286 Ark. 113
Dr. Helen SCHAEFFER, Appellant,
v.
James Franklin McGHEE, Appellee.
No. 84-319.
Supreme Court of Arkansas.
May 20, 1985.
*538 Christopher C. Mercer, James E. Smedley, Little Rock, for appellant.
Huckabay, Munson, Rowlett & Tilley, Little Rock, for appellee.
HAYS, Justice.
Appellant appeals from a judgment on a jury verdict for the defendant in a suit for personal injuries. Appellant's vehicle was struck from behind by the appellee as appellant slowed to a stop in traffic, allegedly resulting in the injuries complained of. Following the verdict, appellant moved for judgment n.o.v. and alternatively for a new trial. These motions were denied and appellant has appealed. She contends there is no substantial evidence to support the verdict and the trial court should have entered a judgment n.o.v. or ordered a new trial. We affirm the trial court.
When a motion for a new trial is made the test to be applied by the trial court is whether the verdict is against the preponderance of the evidence. ARCP 59(a). But the test on review, where the motion is denied, is whether the verdict is supported by substantial evidence, giving the verdict the benefit of all reasonable inferences permissible under the proof. Landis v. Hastings, 276 Ark. 135, 633 S.W.2d 26 (1982).
It is undisputed appellant's vehicle was struck from the rear by the appellee's vehicle. Appellant assumes from that fact alone the jury was obligated to return a verdict in her favor. That is not our law. A plaintiff must prove that she sustained an injury, that the defendant was negligent, and that the negligence of the defendant was the proximate cause of her injuries. See AMI 203.
The fact that appellee's vehicle struck appellant does not create a presumption *539 of negligence, St. Louis-San Francisco Ry. Co. v. Ward, 197 Ark. 520, 124 S.W.2d 975 (1939), and the jury may have decided the appellee was exercising ordinary care. There was proof the roads were glazed with snow and ice. In fact, appellant testified conditions were so hazardous she did not get out of her car after the accident for fear of falling on the ice. Appellee testified when he first saw appellant her vehicle was at a right angle to the curb. He stopped, then followed her for some distance at a slow speed and when she stopped for traffic he skidded into her rear bumper at a speed of 5 miles per hour. Appellee said appellant's car moved forward about a foot on impact and neither car had any visible damage. Nor did the complaint allege any property damage to her automobile.
With respect to appellant's injuries, we cannot say the jury was obligated to attribute her complaints to the mishap. The jury could have inferred from the proof her symptoms were attributable to other causes and not to the impact from appellee's vehicle.
Where the sufficiency of the evidence to support a verdict is the issue on appeal, the standard of review is whether the verdict is supported by substantial evidence. Obviously in appeals from a verdict for the defendant the rule cannot always be read literally, as the defendant may have introduced little or no proof, yet the jury found against the plaintiff. It makes little sense in such cases for the appellant to argue the strict application of the rule, insisting that a reversal is required because the defendant's proof failed to meet the substantial evidence test. The evident fact is the plaintiff failed to convince the jury, or fact finder, of an essential element of proof. That seems to have been the case with this jury, it simply did not think the defendant was negligent, or that the plaintiff's injuries were proximately caused by the negligence, if any. Thus, the lack of substance is not with the defendant's proof, but with the plaintiff's. See Morton v. American Medical International, Inc., 286 Ark. 88, 689 S.W.2d 535 (1985).
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625447/ | 464 So. 2d 1192 (1985)
STATE of Florida, Petitioner,
v.
Jerome LANIER, Respondent.
No. 64853.
Supreme Court of Florida.
February 28, 1985.
Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., Miami, for petitioner.
Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for respondent.
*1193 ADKINS, Justice.
The following question has been certified as being of great public importance:
MAY A DEFENDANT WHO IS CHARGED BY INFORMATION ALLEGING THAT HE DID UNLAWFULLY HANDLE, FONDLE OR MAKE AN ASSAULT UPON A TWELVE-YEAR-OLD GIRL `BY ENGAGING IN SEXUAL INTERCOURSE' BE CONVICTED OF A VIOLATION OF SECTION 800.04, FLORIDA STATUTES (1981), WHERE THE UNDISPUTED FACTS REVEAL THAT THE TWELVE-YEAR-OLD WAS PREVIOUSLY UNCHASTE AND THE SEXUAL INTERCOURSE WAS CONSENSUAL?
The Third District Court of Appeal answered the question in the negative. Lanier v. State, 443 So. 2d 178 (Fla. 3d DCA 1983). We have jurisdiction pursuant to Article V, section 3(b)(4), Florida Constitution, and we answer the question in the affirmative.
Section 800.04, Florida Statutes (1983), punishes lewd, lascivious or indecent assaults or acts upon or in the presence of a child. Shortly after the certification of this question, the Florida legislature convened and passed an amendment to section 800.04, which was designed to specifically cover the acts committed in the instant case.
Section 800.04 was amended, in part, to read:
(3) Neither the victim's lack of chastity nor the victim's consent is a defense to the crime proscribed by this section.
The legislature indicated its desire to correct the Third District Court of Appeal's misguided interpretation of the legislative intent behind section 800.04 by amending this section shortly after the question was certified. The preamble to chapter 84-86, Laws of Florida, amending section 800.04 notes:
WHEREAS, the intent of the Legislature was and remains to prohibit lewd and lascivious acts upon children, including sexual intercourse and other acts defined as sexual battery, without regard either to the victim's consent or of the victim's prior chastity.
(Emphasis added.)
We must apply section 800.04 as it existed at the time the allegedly lewd and lascivious acts occurred, prior to the enactment of the amendment. Further, we are not bound by statements of legislative intent uttered subsequent to either the enactment of a statute or the actions which allegedly violate the statute. However, we will show great deference to such statements, especially in a case such as this, when the enactment of an amendment to a statute is passed merely to clarify existing law. Cf. Williams v. Hartford Accident & Indemnity Co., 382 So. 2d 1216, 1220 (Fla. 1980). (An amendment to a statute clarifying the scope of underinsured motorist insurance coverage did not alter the scope of such coverage as it existed prior to the enactment of the amendment because the amendment merely served to clarify the extent of coverage as it previously existed.)
Therefore, we hold that section 800.04 both prior to and subsequent to the 1984 amendment is violated when a male engages in sexual intercourse with a twelve-year-old girl despite the fact that the victim was previously unchaste and the sexual intercourse was consensual.
For the reasons stated, the decision of the district court is quashed and the cause is remanded with instructions to affirm the order of the trial court.
It is so ordered.
BOYD, C.J., and OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625417/ | 464 So. 2d 1091 (1985)
STATE of Louisiana
v.
Raymond VALENTINE.
No. 84-KA-0690.
Court of Appeal of Louisiana, First Circuit.
February 28, 1985.
Writ Denied May 13, 1985.
*1093 Ossie Brown, Dist. Atty. by Jesse Bankston, Baton Rouge, for plaintiff-appellee.
David Price, Asst. Public Defender, Baton Rouge, for defendant-appellant.
Before EDWARDS, SHORTESS and SAVOIE, JJ.
EDWARDS, Judge.
Raymond Valentine, convicted of possession of pentazocine under LSA-R.S. 40:967C and sentenced to three years imprisonment without hard labor, appeals his conviction and sentence, alleging six assignments of error.
We affirm.
Officers David Whatley and Stanley Bihm of the Baton Rouge Police Department were patrolling the area around 38th Street and Cain, an area notorious for drug related crimes, on the night of October 6, 1983. They were in an unmarked police car, cruising between 5 and 10 mph. At about 9:30 p.m., while northbound on 36th Street, they noticed Valentine walking in the same direction. They followed him down the street and around the corner when he turned right at Cain. Officer Whatley noticed a small "shining object" in Valentine's hand. As they passed him, Valentine, who according to Whatley had by then become aware of their presence and knew that they were police officers, tried to shield the object from view. After they had pulled ahead of him, he dropped it on the ground. The officers stopped the car; Bihm detained Valentine while Whatley retrieved the object, a packet of tin foil which contained two tablets, one of which was later determined to be pentazocine, also known as talwin, a Schedule II controlled dangerous substance under LSA-R.S. 40:964.
Before trial, defendant filed a motion to suppress the seized pentazocine and a motion to suppress certain inculpatory statements which he contends were made as a result of threats by Officer Bihm. Both motions were denied.
In his first assignment of error, the defendant contends that the trial judge erred in overruling his objection to hearsay testimony at the suppression hearing.
The defendant testified that while on the way downtown for booking, Officer Bihm coerced certain inculpatory statements from him by telling him that he would have "to sing" or "go back to the penitentiary." Officer Bihm was unavailable for testimony at the suppression hearing, but Officer Whatley did testify on behalf of the State. When he was asked whether Officer Bihm made the alleged threat, defendant objected to his testimony on the grounds of hearsay. The trial judge overruled the objection, and Whatley answered that Bihm made no such threat. Defendant contends that Officer Whatley's denial was inadmissible hearsay.
Hearsay evidence is evidence of an unsworn, out-of-court statement made by a person other than a testifying witness and offered as proof of the truth of the statement's content. If such a statement is offered for any other purpose, such as proof only that the statement was made, then the evidence is not hearsay. State v. Sheppard, 350 So. 2d 615, 643 (La.1977); State v. Monk, 315 So. 2d 727, 740 (La. 1975).
Whatley's testimony does not contain hearsay evidence for two reasons. First, since he denied that any statement was in fact made, his testimony was not offered as proof of any statement. Second, *1094 his testimony was not offered to prove the truth of any statement. Unless testimony is offered to prove the truth of an out-of-court statement, there is no basis for a hearsay objection. Accordingly, the trial court properly overruled defendant's objection. This assignment of error is without merit.
In his second assignment of error, defendant contends first that the State failed to prove beyond a reasonable doubt that his inculpatory statements were "free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises," as required by LSA-R.S. 15:451.
Under article 451, the State must specifically rebut defendant's allegations and may not rely upon a general disclaimer that no undue influence was asserted on the defendant. State v. Dison, 396 So. 2d 1254, 1257 (La.1981). However, in determining whether the ruling on defendant's motion to suppress was correct, we may consider not only the evidence introduced at the hearing but also all pertinent evidence given at the trial of the case. State v. Beals, 410 So. 2d 745 (La.1982).
We find that the allegations that Officer Bihm told the defendant to "sing" or he would go back to the penitentiary were specifically rebutted. Officer Whatley, who was present in the automobile when the threats were alleged to have been made, specifically denied that Officer Bihm made such threats. Moreover, Officer Bihm testified at trial that he made no offers of inducement or leniency to the defendant or threatened or physically abused him.
When the admissibility of a confession or inculpatory statement turns on credibility evaluations of a witness, the trial judge's determination will not be overturned on appeal unless his evaluations are not supported by the evidence. State v. Jackson, 414 So. 2d 310, 312 (La.1982). We find there is evidence to support the trial court's ruling. Therefore, the inculpatory statement was properly admitted into evidence at trial.
Second, defendant claims that the pentazocine should have been suppressed as the fruit of an unlawful detention. The state argues that Officer Whatley recovered the evidence after it had been lawfully abandoned.
If, prior to the abandonment of the evidence, there is an unlawful intrusion into the defendant's constitutional right to be left alone, then the evidence is unlawfully seized. An unlawful intrusion occurs when there is an actual stop without reasonable cause or when a stop without reasonable cause is imminent. State v. Belton, 441 So. 2d 1195, 1199 (La.1983). The legality of a stop which occurs after an abandonment is irrelevant in determining whether the evidence must be suppressed. See State v. Fleming, 457 So. 2d 1232, 1235 (La. 1st Cir.1984) (Edwards, J., concurring).
Defendant argues that an unreasonable stop was imminent before he abandoned the foil packet because the officers, who knew the defendant was aware of their presence, followed him around the corner on to Cain Street. This situation does not approach those in which courts have found that a stop was imminent.
For example, in State v. Chopin, 372 So. 2d 1222 (La.1979), the police drove past defendant, turned around and came back toward him, turned on the bright lights, and stopped three to four feet in front of him. Defendant then ran and dropped a bag containing drugs. Although defendant was not actually stopped when he dropped the bags (because he was running from the officers), a stop was imminent. In State v. Saia, 302 So. 2d 869 (La.1974), the police pulled their car up beside defendant who had just left a house known to be a drug outlet. She turned around and headed back for the house. The police got out of their car and followed her back to the front door where they overtook her. She reached into her waistband and pulled out two glassine envelopes which contained heroin, but before she could put the envelopes in her mouth the police snatched *1095 them out of her hand. In both cases, the court found that a stop was imminent because the police had forced the confrontation and caused the defendant to abandon or at least attempt to abandon the evidence.
In the instant case, the police did not force a confrontation with the defendant nor give any indication that a stop was imminent before he had abandoned the evidence. They had passed him on the street, and did not stop the car, get out and approach the defendant until after he had thrown the foil packets on the ground. Indeed, these facts are remarkably similar to those in State v. Ryan, 358 So. 2d 1274 (La.1978).
In that case, the police officers noticed the defendant shielding an object from sight as they passed him in an unmarked police car. They circled back and stopped the car near the accused. One of the officers testified that the accused dropped the object after the officer had gotten out of the car and started towards him; the other officer testified that the defendant dropped the object before anyone got out of the car. Both agreed that one of them detained the defendant while the other recovered the abandoned object. The Louisiana Supreme Court held that the property had been abandoned prior to any detention or imminent detention, and that the accused could not be expected to carry contraband and drop it with impunity simply because he sees approaching police officers.
Because the evidence was abandoned prior to any detention, the trial judge correctly denied defendant's motion to suppress. This assignment of error is without merit.
In assignments of error numbers 3 and 4, defendant contends that the trial court erroneously denied his challenge for cause of two prospective jurors.
The defendant contends that juror Shirley Smith was not impartial under LSA-C. Cr.P. art. 797(2), because the prosecuting attorney in this case had previously prosecuted a man found guilty of murdering Ms. Smith's sister. He further contends that juror Earl Lorraine Gibson should have been excluded because her relationship with law enforcement agencies indicated a likelihood of influencing her verdict in the State's favor. LSA-C.Cr.P. art. 797(3). Miss Gibson works as a correctional officer for the Department of Corrections in St. Gabriel Prison for Women, and four of her first cousins work for the Sheriff's Department of East Baton Rouge Parish.
The trial judge is vested with broad discretion in ruling on a challenge for cause and his ruling will not be disturbed on appeal without a showing of abuse of discretion. State v. Glaze, 439 So. 2d 605, 606-607 (La.App. 1st Cir.1983).
Despite the murder of her sister, Shirley Smith unhesitatingly said that she could and would be fair and impartial toward the defendant. The trial judge, in denying defendant's challenge for cause, noted that defendant was not on trial for a crime of violence and that he was satisfied Ms. Smith would be an impartial juror. We see no abuse of discretion in his ruling.
As for Miss Gibson, a criminal juror's association with law enforcement duties must be closely scrutinized by the trial court. State v. Chapman, 410 So. 2d 689, 696 (La.1981). Miss Gibson answered that she would have no trouble being objective in determining guilt or innocence, and that she would not be biased in weighing the credibility of police officers who would testify. None of her relatives were involved with defendant's case. In light of these considerations, we find no abuse of discretion in accepting Miss Gibson as a fair and impartial juror. These assignments of error are without merit.
In assignments of error numbers 5 and 6, defendant contends that the trial judge imposed an excessive sentence and failed to comply with the sentencing guidelines in LSA-C.Cr.P. art. 894.1.
The trial judge has wide discretion in imposing a sentence within the statutory limits. Given compliance with the sentencing criteria of LSA-C.Cr.P. art. *1096 894.1, a sentence will not be set aside as excessive unless it is so disproportionate to the crime that it shocks our sense of justice or is nothing more than the needless imposition of pain and suffering. See State v. Wardlow, 448 So. 2d 257, 259 (La.App. 1st Cir.1984), and the cases cited therein.
The record indicates that the trial judge thoroughly examined both mitigating and aggravating circumstances peculiar to the defendant. He noted that the defendant had no juvenile record, that he attended college for a year and then enlisted into the Navy. Following an honorable discharge from the Navy, defendant worked as an auto mechanic and was thought of as a good worker. He began attending Southern University, but because of a drug addiction, he dropped out of school and turned to crime to support his habit.
The trial judge also noted that defendant was a second felony offender and eligible for supervised probation only under LSA-C.Cr.P. art. 893, which he stated he would not apply in this particular case. He felt there was an undue risk that defendant would commit another crime during any period of a suspended sentence with unsupervised probation, and that any lesser sentence would deprecate the seriousness of the crime. In light of these factors, we find adequate compliance with article 894.1.
Any person convicted of possession of pentazocine shall be imprisoned with or without hard labor for at least two but not more than five years. He may also be fined up to $5,000. LSA-R.S. 40:967C(1). Defendant was sentenced to serve three years in prison without hard labor. We do not feel this is an excessive sentence. These assignments of error are without merit.
For the foregoing reasons, we affirm the trial court's denial of the defendant's motion to suppress and affirm the defendant's conviction and sentence.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625439/ | 176 Wis. 2d 571 (1993)
500 N.W.2d 277
John A. CASTEEL, a/k/a Tayr Kilaab Al Ghashiyah (Khan), Plaintiff-Appellant,
v.
Gary R. McCAUGHTRY, Thomas Borten, Thomas Gozinske, William Lackey, Frank Mesa, Dan Pashke, Timothy Morris, Ray Fromolz and Thomas Nickel, Defendants-Respondents-Petitioners.
No. 91-0218.
Supreme Court of Wisconsin.
Oral argument March 30, 1993.
Decided June 3, 1993.
*573 For the defendants-respondents-petitioners the cause was argued by Joanne F. Kloppenburg, assistant attorney general with whom on the briefs was James E. Doyle, attorney general.
For the plaintiff-appellant there was a brief and oral argument by Martha K. Askins, assistant state public defender.
Amicus Curiae brief was filed by Bruce Meredith, staff counsel and Mary E. Pitassi, associate counsel for the Wisconsin Education Association Council.
WILLIAM A. BABLITCH, J.
John Casteel (Casteel), an inmate at the Waupun Correctional Institution (Waupun), brought an action in the circuit court pursuant to 42 U.S.C. sec. 1983 and the law of Wisconsin alleging that the defendants, the warden and the security director at Waupun and several Waupun employees (referred to collectively as *574 McCaughtry), violated his rights in transferring him to temporary lockup (TLU) status in violation of Wisconsin Administrative Code regulations. The defendants seek review of the court of appeals' decision which held that Wisconsin Administrative Code sec. DOC 303.11 provides Wisconsin inmates, for purposes of the Fourteenth Amendment to the United States Constitution, a liberty interest in remaining out of and getting out of TLU. The court of appeals also concluded that Casteel's failure to file with the state a notice of claim pursuant to sec. 893.82, Stats., does not bar his state law claim for declaratory relief and an injunction.
Because Wis. Adm. Code sec. DOC 303.11 does not impose a substantive limitation on official discretion by mandating the outcome of an official's decision upon a finding that relevant criteria have been met, it does not create a liberty interest protected under the Fourteenth Amendment. Thus, we reverse the decision of the court of appeals on that issue and hold that Casteel fails to state a sec. 1983 claim upon which relief can be granted. However, we agree with the court of appeals' conclusion that Casteel's failure to file a notice of claim with the state pursuant to sec. 893.82, Stats., does not bar his state law claim for declaratory relief and an injunction. Accordingly, the decision of the court of appeals is affirmed in part and reversed in part.
The relevant facts are undisputed. In June 1990, Casteel filed a complaint in Dane County Circuit Court seeking declaratory, injunctive and monetary relief for the alleged deprivation of his liberty without due process and assorted violations of federal and state law. Casteel alleged that on six occasions between March 1985 and January 1990, he was removed from the general prison population and placed in TLU. Wisconsin Adm. Code sec. DOC 303.11, set forth in full below, *575 governs TLU.[1] On each occasion, Casteel alleges Wis. *576 Adm. Code sec. 303.11 was violated, in that he was not served with a conduct report before being placed in TLU, was not given a hearing on whether TLU was appropriate (sub. (2)), was not given an opportunity to respond as to why TLU was unnecessary, was not given the reasons for the TLU placement or the facts for the decision (subs. (2) and (5)), the security director did not review his TLU placement on the following work day (sub. (2)), and the defendants failed to properly review his TLU status every seven days (sub. (3)). Specifically, Casteel's complaint sought a declaratory judgment that the practices complained of were illegal and unconstitutional, a permanent injunction preventing the defendants from continuing those practices and damages.
McCaughtry moved to dismiss the entire complaint. The circuit court granted the motion concluding that dismissal was appropriate because Casteel failed to allege that he had exhausted his available administrative remedies under the Inmate Complaint Review System, Wis. Adm. Code sec. DOC 310 (ICRS). In a published decision, the court of appeals reversed in *577 part and affirmed in part, holding first that Casteel's failure to allege his compliance with the state notice of claim statute, sec. 893.82(3), Stats., bars his right to bring an action against McCaughtry for damages under state law. However, the court concluded that his failure to allege compliance with sec. 893.82(3) does not bar his state law claim for declaratory relief and an injunction. Notwithstanding, the court upheld the dismissal of his claims for declaratory and injunctive relief because Casteel failed to allege that he exhausted his administrative remedies under the ICRS. Lastly, the court of appeals concluded that Casteel's complaint states a claim under sec. 1983 because Wis. Adm. Code sec. DOC 303.11 creates a liberty interest in remaining out of and getting out of TLU, and recent Wisconsin Supreme Court case law indicates that exhaustion of administrative remedies is unnecessary to state a sec. 1983 claim. See Casteel v. Vaade, 167 Wis. 2d 1, 5, 481 N.W.2d 277 (1992) ("plaintiff need not exhaust his administrative remedies before bringing ... sec. 1983 action in state court.") We granted McCaughtry's petition for review of the following issues:
1. Did the court of appeals correctly find that Wis. Admin. Code § DOC 303.11 creates a liberty interest protected by the fourteenth amendment ...?
2. Did the court of appeals properly find that the plaintiff's claims for declaratory and injunctive relief ... are not subject to the requirements of the notice of claims statute, sec. 893.82(3), Stats.?
We address each issue in turn below.
*578 I.
This case arises from the circuit court's dismissal of Casteel's complaint for failure to state a claim upon which relief can be granted. For purposes of determining whether a complaint should be dismissed, "`the facts pleaded and all reasonable inferences from the pleadings must be taken as true.'" State v. American TV, 146 Wis. 2d 292, 300, 430 N.W.2d 709 (1988) (citation omitted). "The motion to dismiss tests the legal sufficiency of the complaint. The claim is dismissed only when `it is quite clear that under no conditions can the plaintiff recover.'" Id. (citation omitted). Whether Casteel's complaint states a sec. 1983 claim upon which relief can be granted turns upon whether Casteel alleges the deprivation of any constitutionally protected liberty interest as required to state a Fourteenth Amendment claim under 42 U.S.C. sec. 1983.
[2]
The Fourteenth Amendment to the United States Constitution provides in part: "nor shall any State deprive any person of life, liberty, or property, without due process of law...." Three kinds of sec. 1983 claims may be brought against the state under the Due Process Clause: (1) Plaintiffs may bring suit under sec. 1983 for state officials' violations of their rights under a specific protection in the Bill of Rights; (2) The Due Process Clause contains a substantive component that bars certain arbitrary, wrongful government actions, (these are commonly known as substantive due process rights); (3) An action may be brought under sec. 1983 for a violation of procedural due process. Zinermon v. Burch, 494 U.S. 113, 125 (1990). The issue before this court concerns only an alleged violation of Casteel's procedural due process rights.
*579 "`In procedural due process claims, the deprivation by state action of a constitutionally protected interest in `life, liberty, or property' is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.'" Id. (citation omitted). The United States Supreme Court in Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460 (1989) (citations omitted), explained that procedural due process questions are examined in two steps: "the first asks whether there exists a liberty ... interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient." Thus, we must first determine whether Casteel has been deprived of a protected liberty interest. If such a deprivation occurred, we reach the second step of the analysis.
"Protected liberty interests `may arise from two sourcesthe Due Process Clause itself and the laws of the States.'" Id. At issue in this case is whether Wis. Adm. Code sec. DOC 303.11, as a law of the state, provides Wisconsin inmates, for purposes of the Fourteenth Amendment, a liberty interest in remaining out of and getting out of TLU.
According to the United States Supreme Court in Thompson, the method of inquiry for determining whether a state statute or regulation creates an enforceable liberty interest is to "examine closely the language of the relevant statutes and regulations" to ascertain whether the State has established "`substantive predicates' to govern official decisionmaking ..." and further whether the statute or regulation mandates "the outcome to be reached upon a finding that the relevant criteria have been met." Thompson, 490 U.S. at 461-62. This inquiry was also described in *580 Thompson as a requirement that "the regulations contain `explicitly mandatory language,' i.e., specific directives to the decisionmaker that if the regulations' substantive predicates are present, a particular outcome must follow." Id. at 463.
McCaughtry urges us to follow the Seventh Circuit Court of Appeals' opinion in Russ v. Young, 895 F.2d 1149 (7th Cir. 1990); a case in which the Seventh Circuit applied the Thompson analysis to Wisconsin's TLU regulation. In Russ, the Seventh Circuit concluded that Wisconsin's TLU regulation "does not place such substantive limits on official discretion sufficient to establish a prisoner's liberty interest in staying out of TLU." Id. at 1153. As support for this contention, the court pointed out that the "language of the regulation employs discretionary rather than the `unmistakenly mandatory' language required...." Id. at 1153. In particular, the court emphasized that the regulation states that an inmate may be placed in TLU, "and thus, in context, merely provides procedural guidelines permitting, but not mandating, the placement of an inmate in TLU." Id.
Moreover, the Russ court noted that the Wisconsin regulation allows removal from the general population if the charging officer subjectively believes that it is more likely than not that any of the criteria set forth in the regulation are met, regardless of whether in fact the criteria are actually met. Thus, according to the court, prisoners rights are "in no way dependent on the realities of the situation, but only upon the perceptions of the officers," Id. at 1154, and thus no substantive limitation is placed upon the official's discretion as required to create a liberty interest.
Casteel contends that we should not rely on Russ in reaching our conclusion because its reasoning has *581 been subsequently questioned by the Seventh Circuit in Smith v. Shettle, 946 F.2d 1250 (7th Cir. 1991). Specifically, Casteel contends that Smith explicitly rejects the notion that a statute which permits, but does not require administrative segregation or some other deprivation, is insufficiently "mandatory" to create a protected liberty interest. Casteel argues that in so holding, the Smith court cited Russ v. Young as a case that had erroneously suggested otherwise. In addition, Casteel contends that Smith similarly rejects the notion that statutes which contain words such as "shall" or "must" are the hallmarks of liberty creating statutes. According to Casteel, the Smith court held that "`explicitly mandatory language', in the sense of words that are in the imperative mood as a matter of grammar is not a sine qua non of entitlement ...." Id. at 1253.
[3]
We agree with Casteel that some tension exists between the reasoning in Russ and the reasoning in Smith. In particular, we agree with Casteel that the opinions are at odds concerning the effect of a statute's failure to require but rather only permit segregation. We are not bound by either opinion, however, we agree with the Smith court that for purposes of determining whether a liberty interest is created by a given regulation it makes no difference that the statute does not require but only permits segregation:
It ... makes no difference ... that the statute does not require but only permits segregationmost statutes leave discretion to the persons charged with their enforcement rather than commanding them to enforce the statute to the hiltthis is the famous `prosecutorial discretion....' Smith, 946 F.2d at 1253.
*582 This conclusion is supported by the United States Supreme Court's decision in Hewitt v. Helms, 459 U.S. 460 (1983). In Hewitt, the regulation at issue provided that "`[a]n inmate may be temporarily confined to Close or Maximum Administrative Custody ... where it has been determined that there is a threat of serious disturbance, or a serious threat to the individual or others.'" Hewitt, 459 U.S. at 470-71 n.6 (Emphasis added). Despite the fact that the regulation permitted, but did not require, that a prisoner be temporarily confined, the United States Supreme Court concluded that because the statute mandated that administrative segregation will not occur absent specified substantive predicates, it created a protected liberty interest.
[4]
Thus, we reject that portion of the Russ court's analysis of Wisconsin's TLU regulation that concludes that because the regulation states that an inmate "may" be placed in TLU, the regulation lacks the mandatory language necessary to create a liberty interest. However, rejecting this portion of Russ is not to say that we reject the opinion in its entirety. On the contrary, we agree with its ultimate conclusion, and hold that, unlike the regulation in Hewitt, sec. DOC 303.11 does not impose a substantive limitation on official discretion by mandating the outcome of the official's decision upon a finding that relative criteria have been met, and thus it does not create a liberty interest under the Fourteenth Amendment.
Wisconsin Administrative Code sec. DOC 303.11(4) preserves a prison official's discretion by providing that an official need only be "satisfied that it is more likely than not" that certain substantive predicates are met before placing an inmate in TLU. Thus, sec. DOC 303.11 does not mandate a particular result *583 even if the facts show that the criteria set forth in sec. DOC 303.11(4)(a) through (e) are or are not present. Rather, the outcome is dependent upon the officer's subjective beliefs concerning the presence or absence of the relevant criteria; it is not dependent upon the realties of the situation. As the Seventh Circuit explained in Russ, 895 F.2d at 1153-54:
[T]he regulation allows removal from the general population if the charging officer subjectively believes that it is more likely than not that any of the criteria set forth ... are met, regardless of whether in fact the criteria are actually metthe regulation does not make the inmate's remaining in the general prison population dependent on the prisoner's own good behavior. We do not agree that somehow the requirement that the officer be satisfied places a substantive limitation on his discretion. The convict does not have a substantive right requiring that the security officer ordering the confinement hold a particular subjective belief, as the regulation does not require that the decisionmakers' subjective beliefs be well founded in fact.... Russ' `rights' were in no way dependent on the realities of the situation, but only upon the perceptions of the officers.
[5]
We find this application of the Thompson analysis persuasive and consistent with the United States Supreme Court's opinion in Hewitt. As noted earlier in this opinion, in Hewitt, the regulation required that the correction official have "determined that there is a threat of a serious disturbance ..." before an administrative confinement placement was permitted. Hewitt, 459 U.S. at 470 n.6. Thus, the regulation mandated that administrative segregation will not occur absent the specified substantive predicates. Wisconsin's TLU *584 regulation's requirement that an officer be satisfied that it is more likely than not that certain criteria are met, unlike the regulation in Hewitt, does not place such substantive limitations on official discretion. Under sec. DOC 303.11, prisoner's rights are "in no way dependent on the realities of the situation, but only upon the perceptions of the officers." Russ, 895 F.2d at 1154. Thus, sec. DOC 303.11 does not create a liberty interest protected under the Fourteenth Amendment, and accordingly Casteel's sec. 1983 claim fails to state a claim upon which relief can be granted.
II.
[6]
We now turn to the issue of whether Casteel's failure to file with the state a notice of claim pursuant to sec. 893.82(3), Stats., bars his state law claim for declaratory relief and an injunction.
Section 893.82(3) provides:
[N]o civil action or civil proceeding may be brought against any state officer, employe or agent for or on account of any act growing out of or committed in the course of the discharge of the officer's, employe's or agent's duties ... unless within 120 days of the event causing the injury, damage or death giving rise to the civil action or civil proceeding, the claimant in the action or proceeding serves upon the attorney general written notice of a claim stating the time, date, location and the circumstances of the event giving rise to the claim for the injury, damage or death and the names of persons involved, including the name of the state officer, employe or agent involved.
*585 The court of appeals concluded that sec. 893.82(3) does not apply to claims for injunctive and declaratory relief. It reasoned as follows:
Section 893.82(3), requires notice of claim within 120 days of the event causing `the injury, damage or death giving rise to the civil action or civil proceeding ...' Casteel's claims for declaratory and injunctive relief do not arise out of injury, damages or death. For that reason, his failure to allege compliance with sec. 893.82(3) has no effect on his claim for declaratory relief and an injunction.
We agree with the court of appeals and adopt its analysis as our own. As Casteel persuasively explains in his brief:
Section 893.82(2)(c) defines `damage and injury' as `any damage or injury of any nature which is caused or allegedly caused by the event.' Section 893.82(2)(c) requires the filing of a notice of claim within a certain number of days of the event causing the injury or damage. Thus, the statute relates back to a previous event causing injury or damage for which the plaintiff seeks to recover by bringing a civil action. The focus of the statute is retrospective: it seeks recovery for past harm.
Declaratory and injunctive relief, however, are designed to prevent future harm; their focus is prospective. To that extent, these claims `do not arise out of injury, damages or death....'
We conclude that Casteel's claims for declaratory relief and an injunction are not barred by his failure to file a notice of claim with the state pursuant to sec. 893.82(2). However, we note that we agree with Amicus Curiae, Wisconsin Education Association Council, that there may be cases where a damage claim is disguised as an action in equity where the primary *586 purpose of the suit is to seek monetary relief, rather than to stop an alleged unlawful governmental action. In such cases, notice of claim pursuant to sec. 893.82(2) may be required.
By the Court.The decision of the court of appeals is affirmed in part and reversed in part.
SHIRLEY S. ABRAHAMSON, J. (concurring in part and dissenting in part).
I would affirm the decision of the court of appeals, Casteel v. McCaughtry, 168 Wis. 2d 758, 484 N.W.2d 579 (1992), holding (1) that Casteel stated a claim under sec. 1983; (2) that Casteel failed to state a claim under state law for damages because he failed to give notice; and (3) that Casteel failed to state a claim for declaratory or injunctive relief under state law because he failed to exhaust his remedies.
I agree with the court of appeals that the administrative code creates a constitutionally protected liberty interest and that the complaint asserts that Casteel was not provided the process that was due him under the code. I therefore conclude, as did the court of appeals, that Casteel's complaint states a cause of action under sec. 1983 for violation of procedural due process.
I am authorized to state that Chief Justice NATHAN S. HEFFERNAN joins this opinion.
NOTES
[1] Wisconsin Adm. Code sec. DOC 303.11 provides: Temporary lockup: use.
(1) An inmate may be placed in temporary lockup (TLU) by a security supervisor, security director, or superintendent.
(2) If the inmate is placed in temporary lockup by a security supervisor, the security director shall review this action on the next working day. Before this review and the review provided for in sub. (3), the inmate shall be provided with the reason for confinement in TLU and with an opportunity to respond, either orally or in writing. Review of the decision must include consideration of the inmates response to the confinement. If, upon review, it is determined that TLU is not appropriate, the inmate shall be released from TLU immediately.
(3) No inmate may remain in TLU more than 21 days, except that the superintendent, without notice to the division administrator, may extend this period for up to 21 additional days for cause. The security director shall review the status of each inmate in TLU every 7 days to determine whether TLU continues to be appropriate. If upon review it is determined the TLU is not appropriate, the inmate shall be released from TLU immediately.
(4) An inmate may be placed in TLU and kept there only if the decision maker is satisfied that it is more likely than not that one or more of the following is true:
(a) If the inmate remains in the general population, the inmate will seek to intimidate a witness in a pending investigation or disciplinary action;
(b) If the inmate remains in the general population, he or she will encourage other inmates by example, expressly, or by their presence, to defy staff authority and thereby erode staffs ability to control a particular situation;
(c) If the inmate remains in the general population, it will create a substantial danger to the physical safety of the inmate or another;
(d) If the inmate remains in the general population, it will create a substantial danger that the inmate will try to escape from the institution; or
(e) If the inmate remains in the general population, a disciplinary investigation will thereby be inhibited.
(5) When an inmate is placed in TLU, the person who does so shall state the reasons on the appropriate form and shall include the facts upon which the decision is based. The inmate shall be given a copy of the form. Upon review, the security director shall approve or disapprove the TLU on the form.
(6) Conditions in TLU shall, insofar as feasible, be the same as those in the status from which the inmate came prior to TLU placement. An inmate who had been earning compensation shall continue to be compensated at the rate earned in his or her previous status, except that an inmate employed by corrections industries shall be compensated in accordance with s. DOC 313.08. If 1983 Wis. Act 528 does not apply to the inmate, he or she shall continue to earn extra good time credit. The inmate may be required to wear mechanical restraints, as defined in s. DOC 306.09(1), while outside the cell if the superintendent or designee determines that the use of mechanical restraints is necessary to protect staff or inmates or to maintain the security of the institution. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625444/ | 464 So. 2d 109 (1985)
Walter Clyde ISHAM
v.
Alice Blake ISHAM.
Civ. 4520-X.
Court of Civil Appeals of Alabama.
January 16, 1985.
*110 M.A. Marsal and George L. Simons, Mobile, for appellant.
Ian F. Gaston, Mobile, for appellee.
BRADLEY, Judge.
This is a divorce case.
The parties were married on June 3, 1973. The wife filed a complaint for divorce in the Circuit Court of Mobile County on March 20, 1984. The trial court heard the case ore tenus and entered a judgment of divorce. The trial court divided the parties' property, ordered the husband to pay the marital debts, and awarded the wife $750 for attorney's fees. There were no minor children and there was no award of alimony.
On August 6, 1984 the husband filed a motion for new trial or rehearing, and/or reconsideration. The trial court denied husband's motion for new trial or rehearing and granted the motion for reconsideration. In granting the motion for reconsideration, the trial court amended the judgment of divorce nunc pro tunc to award the husband a coin collection that had not been disposed of in the prior decree. The husband appeals from the trial court's denial of his motion for new trial or rehearing. The wife cross-appeals from the divorce decree.
In support of his appeal the husband argues that the trial court erred in its division of the marital property. First, the husband contends that monies held in a money market account and in a certificate of deposit, in the amount of between $36,800 and $44,500, were his separate property and that the trial court erred by awarding the wife a portion of those funds. The record reveals that the husband purchased the certificate and money market account after the parties were married. The accounts were held in both parties' names. The funds for the purchase of these accounts were derived from the sale of property that the husband owned prior to the marriage of the parties. After the parties *111 were married the property in question was sold. The husband received $13,500 from the sale of this property, which money he used to invest in these accounts. The husband contends that the funds held presently in these accounts are a result of accumulated interest and reinvestments of the original investment of $13,500. No evidence was presented at trial either refuting or supporting the husband's contention. The wife did not allege at trial that she made any cash contributions to these accounts. She did testify, however, that she worked alongside her husband in his business and kept the books and ran errands for the company. The wife received no salary for her assistance. The trial court in its judgment of divorce awarded, in part, the following:
"9. That the money market and the CD in the approximate amount of $44,500.00, shall be divided as follows: the Plaintiff is awarded $19,717.43, and the Defendant is awarded $13,500.00, and the remainder is to be equally divided between the parties."
The husband argues that the funds in the above accounts were his separate estate and, therefore, the trial court improperly awarded a portion of this amount to the wife. We disagree.
We find that our case of Franks v. Franks, 383 So. 2d 860 (Ala.Civ.App.1980), is dispositive of husband's argument. In Franks the husband contended that the trial court erred in awarding the wife a portion of a certificate of deposit purchased by husband with money received by him from the sale of property owned by him prior to the marriage. In upholding the award we said that a division of property is within the sound discretion of the trial court and a division of property by the trial court will not be changed except for an abuse of its discretion. Franks v. Franks, supra.
In the case at bar the wife was awarded a portion of the CD's and money market funds which had accumulated over the years, apparently from money received by the husband from the sale of property owned by him prior to his marriage to wife. Based on our holding in Franks, we do not find that the trial court erred in this aspect of the case.
We would also point out that even though the initial investment came from moneys derived from the sale of property owned by husband prior to the marriage, the CD's and money market accounts were taken in the joint names of the parties. It has been held that the trial court is under no requirement to attempt to set aside gifts or inheritances when these assets become the property of both spouses. Campbell v. Campbell, 51 Ala.App. 295, 285 So. 2d 105 (1973). Here, the parties took the money from the sale of husband's property and invested it in jointly-owned assets.
Husband also says that the trial court abused its discretion in the division of the parties' property. He contends that the wife received much more than she was entitled to receive under the facts of the case. In her cross-appeal wife also argues that she did not receive her fair share of the parties' property. In other words, the husband received an unequal division of the parties' property.
A division of property in a divorce proceeding is not required to be equal, but it must be equitable according to the nature of the case. Kaiser v. Kaiser, 434 So. 2d 264 (Ala.Civ.App.1983). And, the division of property is a matter within the sound discretion of the trial court. Langford v. Langford, 441 So. 2d 962 (Ala.Civ. App.1983). The trial court's exercise of its discretion will not be set aside except for an abuse of that discretion. Langford v. Langford, supra.
The evidence shows that the parties were married for about eleven years and that wife had worked outside of the home off and on for several years. The money she received from the jobs went into the parties' joint bank account, from which marital expenses were paid. At other times she assisted husband in his work, actually participating in the physical labor as well as keeping the books and paying the bills.
*112 She helped raise husband's minor children by a former marriage. She left him when he transferred his affections to another woman.
The parties accumulated a sizeable estate over the life of their marriage. The value was estimated to be anywhere from $171,600 to $187,100. Of this estate, husband received approximately sixty percent and the wife forty percent.
Based on the portions of the estate received by each one of the parties and the other factors established by the evidence, we do not find that the trial court abused its discretion in the division of the parties' property. This finding applies equally to the husband's appeal as it does to the wife's cross-appeal.
Husband's final contention is that the trial court erred in awarding the wife an attorney's fee of $750 when she had previously paid her lawyer $2,500 out of the parties' estate.
The granting of attorney's fees in a divorce action is a matter within the trial court's discretion and will not be reversed on appeal except for abuse of that discretion. Masucci v. Masucci, 435 So. 2d 120 (Ala.Civ.App.1983). Factors to be considered in making an attorney's fee award include earning capacities of the parties, results of the litigation, and financial circumstances of the parties. West v. West, 437 So. 2d 583 (Ala.Civ.App.1983). The wife nets $103 a week as a cashier. The husband apparently earns considerably more, although no earnings amount is specified in the record, but the husband has an established business with several prominent clients. The wife, however, is fairly inexperienced in the marketplace. It appears, therefore, that the husband's financial condition makes him better able to pay the attorney's fee. We find no abuse of discretion here.
The wife is awarded $350 as an attorney's fee on appeal.
AFFIRMED.
WRIGHT, P.J., and HOLMES, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2861671/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00008-CV
L.P.D., Appellant
v.
R.C., Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. 96-06986, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
At issue in this appeal is whether the trial court abused its discretion in failing to appoint an
attorney ad litem to represent the child's interests in this voluntary paternity action resolved by a default
judgment. Concluding that it did, we will reverse the trial-court judgment.
THE DISPUTE
While living in Texas, L.P.D. bore a child, J.A.C., out of wedlock. She then moved to
Philadelphia with J.A.C. when the child was two and one-half years old. Five months later, R.C. filed a
voluntary paternity action. See Tex. Fam. Code Ann. § 160.201 (West 1996). The trial court rendered
a default judgment in favor of R.C. after L.P.D. failed to appear in court. The child was not present at the
proceeding. The judgment declares that R.C. is J.A.C.'s father and appoints L.P.D. and R.C. as joint
managing conservators of the child. L.P.D. appeals by five points of error, alleging in four points that the
trial court erred by signing the decree of paternity without naming an attorney ad litem to represent the child
because such failure was an abuse of discretion under the Family Code, or in the alternative because the
Family Code's failure to require such representation violates the equal protection and due process
guarantees of the federal and state constitutions. In a fifth point of error, appellant claims the trial court
erred in naming R.C. a joint managing conservator under the circumstances of this case without any
evidence concerning the child's best interest.
DISCUSSION
Procedural Posture
L.P.D. appeals by writ of error. (1) To appeal by writ of error, she must demonstrate that
(1) she is a party to the suit, (2) she filed her petition for writ of error within six months of judgment; (3)
she did not participate at trial; and (4) error is apparent on the face of the record. See Brown v.
McLennan County Children's Protective Servs., 627 S.W.2d 390, 392 (Tex.1982); Jaramillo v.
Liberty Mut. Fire Ins. Co., 694 S.W.2d 585, 587 (Tex. App.--Corpus Christi 1985, writ ref'd n.r.e.).
The only requirement at issue in this appeal is whether error is apparent on the face of the
record. The record consists of all papers filed with the trial court, including the clerk's record and the
reporter's record. See DSC Fin. Corp. v. Moffitt, 815 S.W.2d 551 (Tex. 1991).
Analysis of the Merits
By point of error four, L.P.D. complains that the trial court abused its discretion by failing
to appoint an attorney ad litem to represent J.A.C.'s interest.
A child's interest in determining his parentage includes obtaining support, legitimacy, and
possible inheritance rights. See R.M.H. v. Messick, 828 S.W.2d 226, 230 (Tex. App.--Fort Worth
1992, no writ). A child's interest in determining his parentage is not necessarily coextensive with his
parent's. See id.
In a paternity proceeding the child is not a necessary party, and in a trial on the merits it
is rebuttably presumed that the interests of the child will be adequately represented by the party bringing
suit to determine parentage. Tex. Fam. Code Ann. § 160.003(a), (b); see R.M.H., 828 S.W.2d at 228-29. However, if the court finds that the child's interests will not be adequately represented by a party to
the suit or that the child's interests may be adverse to that party's interests, the court shall appoint an
attorney ad litem to represent the child. Tex. Fam. Code Ann. § 160.003(b) (emphasis added).
Section 160.003(c) states that a "child shall be represented in a settlement agreement,
dismissal, or nonsuit by a guardian ad litem or an attorney ad litem unless the court finds on the record that
the interests of the child will be adequately represented by a party to the suit." Id. § 160.003(c). Although
the present case involves a default judgment rather than a settlement agreement, dismissal, or nonsuit, the
section demonstrates a preference for ad litem representation for the child in situations in which the child's
parentage will be resolved other than by a trial on the merits. In any circumstance, both subsections (b)
and (c) contain the same underlying concern: that the interests of the child be adequately represented. Id.
§ 160.003(b), (c). Moreover, the Family Code generally mandates the appointment of an attorney ad litem
for any party in a case in which the court deems representation necessary to protect the interests of the
child who is the subject matter of the suit. Tex. Fam. Code Ann. § 107.011(b).
A trial court exercises its discretion in deciding whether to appoint an ad litem in paternity
proceedings. In re J.D.G., 940 S.W.2d 246, 248-49 (Tex. App.--San Antonio 1997, no writ); cf.
McGough v. First Court of Appeals, 842 S.W.2d 637, 640 (Tex. 1992) (appointment of new guardian
ad litem in personal injury litigation was not abuse of discretion). Its decision is reviewed for an abuse of
discretion. Id. The issue is whether circumstances exist which would cause a prudent trial judge to believe
that the appointment of an attorney was necessary to adequately represent and protect the child's interest.
Cf. Swearingen v. Swearingen, 578 S.W.2d 829, 831 (Tex. Civ. App.--Houston [1st Dist.] 1979, writ
dism'd w.o.j.) (no need to appoint ad litem in divorce action if no circumstances indicate need for one).
The petition reveals that at the time R.C. filed the voluntary statement of paternity, he was
fifty-three years old, L.P.D. was twenty-one years old, and J.A.C. had just turned three years old. The
petition states that L.P.D. and J.A.C. had moved to Pennsylvania five months previously.
The reporter's record is exceedingly slim: only nine pages, the bulk of which merely recites
R.C.'s request for standard possession. R.C.'s affidavit shows that J.A.C. did not reside with him at any
time. All in all, the sparse record does not demonstrate that R.C. ever had any contact or any relationship
with J.A.C. There is no evidence that any attempt was made by R.C. to establish a relationship with J.A.C.
nor any evidence that such an attempt was thwarted by L.P.D. Nor does the record include any evidence
of R.C.'s employment, lifestyle, or affection for J.A.C. The record does show that R.C. and L.P.D. were
never married, but that L.P.D. has since married another. R.C. admitted that L.P.D. and the child no longer
live in Texas, and that the paternity suit was brought five months after mother and child moved to
Pennsylvania. The default judgment was granted only thirty-three days after L.P.D. was served. In
addition to declaring R.C. the father of J.A.C., the order also appoints R.C. and L.P.D. joint managing
conservators of the child and requires this three-year-old to fly back and forth to Texas once a month with
an escort and expenses to be split between the parties. There were no blood tests or any other evidence
in the record establishing the parent-child relationship between R.C. and J.A.C. other than R.C.'s sworn
statement that he is the biological father of this child.
When there is no person before the court who has had care and custody of the child, or
understands the child's interests through another relationship, or even professes to have met the child, we
hold the presumption that the party bringing suit will adequately represent the child's interest has been
rebutted as a matter of law. (2) There was simply no party present at this proceeding who could satisfy the
Family Code's concern that the interests of the child would be adequately represented. We therefore hold
that the trial court abused its discretion in not ordering an attorney ad litem to represent the child's interests.
We sustain point of error four. Accordingly, we need not address the constitutional issues
raised in points of error one, two and three. See Turner v. State, 754 S.W.2d 668, 675 (Tex. Crim. App.
1988) (reviewing court should resolve non-constitutional points first and if relief is required court should
not address points raising statute's constitutionality); Walton v. Lee, 888 S.W.2d 604, 605 (Tex.
App.--Beaumont 1994, writ denied) (after sustaining point of error on non-constitutional ground, court
declined to address constitutional point of error). We need not reach point of error five alleging the trial
court erred in appointing R.C. a joint managing conservator.
Motion to Dismiss
We must also address R.C.'s motion to dismiss the appeal under the acceptance of benefits
doctrine: "[A] litigant cannot treat a judgment as both right and wrong, and if he has voluntarily accepted
the benefits of a judgment, he cannot afterward prosecute an appeal therefrom." Carle v. Carle, 234
S.W.2d 1002, 1004 (Tex. 1951). However, the doctrine applies only if the benefits were voluntarily
accepted. See, e.g., Gonzalez v. Gonzalez, 614 S.W.2d 203, 204 (Tex. Civ. App.--Eastland 1981, writ
dism'd). It is the appellee's burden to prove that the appellant is estopped by the acceptance of benefits
doctrine. Id.
R.C. declares that he sent three $200 child support payments to L.P.D. beginning in March
1996, and that after the paternity decree was signed, he sent three $400 child support payments. The
checks were indisputably cashed, although the parties dispute whether L.P.D. or her husband cashed them.
R.C. claims that L.P.D. endorsed at least one of the checks. L.P.D. avers that her husband cashed the
checks forwarded to her by the Travis County Domestic Relations Office without her knowledge.
R.C. complains that L.P.D. retained the benefits of the paternity decree from the time she
learned her husband had cashed and deposited the checks until January 3, 1997, when the funds were
tendered into the district court's registry.
In light of L.P.D. and R.C.'s affidavits, R.C. did not meet his burden of proving that L.P.D.
voluntarily accepted the benefits of the child support judgment. Further, L.P.D. has remitted the funds into
the registry of the court. See Twin City Fire Ins. Co. v. Jones, 834 S.W.2d 114, 115-16 (Tex.
App.--Houston [1st Dist.] 1992, writ denied) (payment of amount in controversy into court's registry
defeats application of estoppel). More importantly, we have based our holding on the ground that the trial
court should have appointed an attorney ad litem to represent J.A.C.'s interest; even if L.P.D. had
voluntarily accepted and retained the child support payments, we question whether R.C. could assert that
J.A.C's rights were estopped by L.P.D's act in this case. We overrule the motion to dismiss.
CONCLUSION
The trial court judgment is reversed and the cause remanded so the paternity action may
proceed in accordance with this opinion.
Bea Ann Smith, Justice
Before Justices Powers, Aboussie and B. A. Smith
Reversed and Remanded
Filed: January 29, 1998
Publish
1. The writ of error procedure under former Texas Rule of Appellate Procedure 45 has been
replaced by a restricted appeal under new Texas Rule of Appellate Procedure 30. The only notable
change is that the party seeking to bring a restricted appeal must not have timely filed a post-judgment
motion, a request for findings of fact or conclusions or law, or a notice of appeal. L.P.D. did not file a
post-judgment motion, request, or perfecting instrument within thirty days of the date of judgment.
2. Indeed, it is questionable whether the statutory presumption even applies in this case where
judgment was had by default. The statutory rebuttable presumption applies in a trial on the merits. Tex.
Fam. Code Ann. § 160.003(b). Without deciding that issue, based on the record, we reach the same
conclusion whether the presumption applies or not.
); Walton v. Lee, 888 S.W.2d 604, 605 (Tex.
App.--Beaumont 1994, writ denied) (after sustaining point of error on non-constitutional ground, court
declined to address constitutional point of error). We need not reach point of error five alleging the trial
court erred in appointing R.C. a joint managing conservator.
Motion to Dismiss
We must also address R.C.'s motion to dismiss the appeal under the acceptance of benefits
doctrine: "[A] litigant cannot treat a judgment as both right and wrong, and if he has voluntarily accepted
the benefits of a judgment, he cannot afterward prosecute an appeal therefrom." Carle v. Carle, 234
S.W.2d 1002, 1004 (Tex. 1951). However, the doctrine applies only if the benefits were voluntarily
accepted. See, e.g., Gonzalez v. Gonzalez, 614 S.W.2d 203, 204 (Tex. Civ. App.--Eastland 1981, writ
dism'd). It is the appellee's burden to prove that the appellant is estopped by the acceptance of benefits
doctrine. Id.
R.C. declares that he sent three $200 child support payments to L.P.D. beginning in March
1996, and that after the paternity decree was signed, he sent three $400 child support payments. The
checks were indisputably cashed, although the parties dispute whether L.P.D. or her husband cashed them.
R.C. claims that L.P.D. endorsed at least one of the checks. L.P.D. avers that her husband cashed the
checks forwarded to her by the Travis County Domestic Relations Office without her knowledge.
R.C. complains that L.P.D. retained the benefits of the paternity decree from the time she
learned her husband had cashed and deposited the checks until January 3, 1997, when the funds were
tendered into the district court's registry.
In light of L.P.D. and R.C.'s affidavits, R.C. did not meet his burden of proving that L.P.D.
voluntarily accepted the benefits of the child support judgment. Further, L.P.D. has remitted the funds into
the registry of the court. See Twin City Fire Ins. Co. v. Jones, 834 S.W.2d 114, 115-16 (Tex.
App.--Houston [1st Dist.] 1992, writ denied) (payment of amount in controversy into court's registry
defeats application of estoppel). More importantly, we have based our holding on the ground that the trial
court should have appointed an attorney ad litem to represent J.A.C.'s interest; even if L.P.D. had
voluntarily accepted and retained the child support payments, we question whether R.C. could assert that
J.A.C's rights were estopped by L.P.D's act in this case. We overrule the motion to dismiss.
CONCLUSION
The trial court judgment is reversed and the cause remanded so the paternity action may
proceed in accordance with this opinion. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2861691/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00667-CR
Courtney Ellaine Belk, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF CALDWELL COUNTY, 22ND JUDICIAL DISTRICT
NO. 94-131, HONORABLE BILL BENDER, JUDGE PRESIDING
A jury found appellant guilty of seven counts of third-degree felony theft. Act of May 27,
1985, 69th Leg., R.S., ch. 599, § 1, 1985 Tex. Gen. Laws 2244, amended by Act of May 10, 1993, 73d
Leg., R.S., ch. 203, §§ 4,5, 1993 Tex. Gen. Laws 390, 391-92 (Tex. Penal Code Ann. § 31.03(a),
(e)(4)(A), since amended). The jury assessed punishment at imprisonment for five years on each count.
Appellant's sole point of error is that the evidence is insufficient to support the verdicts. We will affirm.
Appellant was the manager of a McDonald's restaurant in Lockhart. The owners of the
restaurant, Daniel and Catherine Kinney, testified that the restaurant's cash receipts were collected from
the registers twice a day, at the end of each shift. The money was placed in cash envelopes on which the
amounts taken from each register were recorded. Deposit slips were then prepared and placed with the
cash in locked bags, which were supposed to be delivered to the bank daily. In January 1994, the Kinneys
discovered that seven cash deposits, ranging in amounts of from $979.91 to $1906.63, had not been
made. (1) Appellant does not dispute that this money was stolen, but argues that the State failed to prove
beyond a reasonable doubt that she was the thief.
As manager, appellant maintained the restaurant's financial records. The cash deposits
were also her responsibility, although other employees sometimes delivered the deposits to the bank. In
the fall of 1993, the Kinneys noticed that bank deposits were being made late. In addition, cash envelopes
and deposit slips for certain dates were missing. Appellant explained to the Kinneys that she was behind
with her paperwork and that the missing documents were at her home. On January 3, 1994, Catherine
Kinney arraigned to meet appellant at the restaurant to discuss the problem. At this meeting, appellant
produced the missing cash envelopes, but Kinney noticed that some deposit slips were still missing.
Appellant told Kinney that she had been to the bank earlier that day, that the deposits had been made, and
that she was planning to return to the bank to get the validated deposit slips. Over appellant's protest,
Kinney went to the bank to get the deposit slips. At the bank, Kinney learned that the deposits in question
had not been made. (2) Meanwhile, appellant, who was described as nervous and fidgety, left the restaurant
and did not return. Appellant was fired by the Kinneys on January 3. A witness testified that in the days
following her dismissal, appellant had a large amount of cash that she spent freely.
Appellant does not clearly state in her brief whether she is challenging the legal or the
factual sufficiency of the evidence, and her argument contains elements of both analyses. In determining
the legal sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing
all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979);
Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). The same standard applies whether the
evidence is direct or circumstantial. Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991). When
conducting a factual sufficiency review, the evidence is not viewed in the light most favorable to the verdict.
Instead, all the evidence is considered equally, including the testimony of defense witnesses and the
existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319, 321 (Tex. App.--Austin 1992,
no pet.). A verdict will be set aside for factual insufficiency only if it is so contrary to the overwhelming
weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex.
Crim. App. 1996); Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd as untimely
filed).
Appellant points out that there was no evidence that she alone was responsible for making
the restaurant's bank deposits or that she otherwise had sole access to the stolen money. To the contrary,
several employees made the bank deposits and most witnesses agreed that other employees had access
to some or all of the restaurant's cash receipts. The evidence also shows, however, that the restaurant's
accounting system had several checks designed to detect and discourage employee theft, and there was
no evidence that any other employee might have taken the missing money. Further, there was evidence that
appellant sometimes took the restaurant's cash receipts home with her and that she occasionally deposited
the restaurant's money days or even weeks after it was received. When questioned about the missing
deposit slips, appellant told Catherine Kinney that she had made the deposits and that validated deposit
slips were at the bank. In fact, there were no deposit slips because the deposits had not been made.
Applying the standards of review discussed previously, we conclude that the evidence in
this cause is both legally and factually sufficient to sustain the jury's verdicts. Appellant's point of error is
overruled and the judgment of conviction is affirmed.
Marilyn Aboussie, Justice
Before Justices Powers, Aboussie and B. A. Smith
Affirmed
Filed: January 23, 1998
Do Not Publish
1. The missing deposits were from the first shift on December 2, 1993, from the second shifts on
December 17 and 18, 1993, and from both shifts on January 1 and 2, 1994.
2. Appellant did make deposits for the restaurant on January 3. The records indicated that these
deposits consisted of cash received by the restaurant on December 8, 19, 24, 27, and 31, 1993.
blem. At this meeting, appellant
produced the missing cash envelopes, but Kinney noticed that some deposit slips were still missing.
Appellant told Kinney that she had been to the bank earlier that day, that the deposits had been made, and
that she was planning to return to the bank to get the validated deposit slips. Over appellant's protest,
Kinney went to the bank to get the deposit slips. At the bank, Kinney learned that the deposits in question
had not been made. (2) Meanwhile, appellant, who was described as nervous and fidgety, left the restaurant
and did not return. Appellant was fired by the Kinneys on January 3. A witness testified that in the days
following her dismissal, appellant had a large amount of cash that she spent freely.
Appellant does not clearly state in her brief whether she is challenging the legal or the
factual sufficiency of the evidence, and her argument contains elements of both analyses. In determining
the legal sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing
all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979);
Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). The same standard applies whether the
evidence is direct or circumstantial. Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991). | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2861599/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00270-CV
Rose Smetek Falderbaum, Personal Representative of the
Estate of Dorothy B. Smetek, Deceased, Appellant
v.
Shelly Lowe, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 92-01341, HONORABLE PAUL R. DAVIS, JR., JUDGE PRESIDING
This appeal arises from a post-judgment collection effort by appellee Shelly Lowe,
directed against appellant Rose Smetek Falderbaum, as personal representative of the estate of Dorothy
B. Smetek, Deceased. Falderbaum asserts that the trial court erred in exercising its jurisdiction over
matters incident to the estate when it (1) issued a writ of garnishment, and (2) subsequently ordered
Falderbaum to pay Lowe actual and exemplary damages for violating the garnishment order. We will affirm
the trial court's judgment.
BACKGROUND
In December 1991, Lowe obtained a default judgment for over forty-one million dollars
against John Smetek. To date, no payment has been made on this judgment. At some point after the
default judgment was rendered, Lowe discovered that John Smetek was an heir of Dorothy B. Smetek,
deceased, whose estate was under the administration of Probate Court II of Harris County. On January
31, 1992, Lowe filed a writ of garnishment in the Travis County district court. Lowe requested the district
court to order Falderbaum, the administratrix of the estate, to pay Lowe any property due to John Smetek
from the estate. Falderbaum did not contest the writ of garnishment, and thus a default judgment was
rendered on March 18, 1992. The judgment of garnishment specifically ordered Falderbaum to pay Lowe
all property due to John Smetek that may come into her possession as personal representative of the
estate. (1)
Despite the garnishment judgment rendered against her, Falderbaum paid Smetek
$25,428.44. This payment allegedly represented a portion of the property due to Smetek from the estate.
This disbursement was in violation of the garnishment judgment and was not authorized by either the Texas
Probate Code or the probate court. Therefore, Lowe filed a second cause of action against Falderbaum,
under the same cause number, to enforce the writ of garnishment. Specifically, Lowe averred that
Falderbaum had knowingly, willfully, and maliciously converted the garnishment funds due to Lowe into
a direct payment to Smetek, as well as negligently performed her duties as the estate's personal
representative. Lowe asked the district court to find actual and exemplary damages against Falderbaum.
Falderbaum answered these new claims with a general denial and challenged the district court's jurisdiction
with a plea in abatement on September 23, 1994. The district court rejected that plea.
On January 21, 1997, the district court ordered Falderbaum to pay Lowe $25,428.44 in
actual damages. The court further found that Falderbaum had surreptitiously distributed this portion of the
estate in order to bypass the orderly process of the probate court and to interfere with Lowe's right to
receive the money due to her. The court found that this disbursement was done knowingly, willfully,
maliciously, and with actual intent to injure Lowe, and with gross negligence. Therefore, an additional
$36,453 for exemplary damages was granted. Falderbaum appeals the district court's judgment regarding
its jurisdiction over the writ of garnishment and its subsequent enforcement.
DISCUSSION
In her first point of error, Falderbaum argues that the district court lacked subject- matter
jurisdiction to hear Lowe's writ of garnishment and her subsequent enforcement action. This argument is
without merit.
The Texas Probate Code provides that:
[a] statutory probate court has concurrent jurisdiction with the district court in all actions
by or against a person in the person's capacity as a personal representative.
Tex. Prob. Code Ann. § 5(d) (West 1998) (emphasis added). Because the statute clearly acknowledges
that the district court has concurrent subject-matter jurisdiction to hear Lowe's claims against Falderbaum,
we overrule her first point of error. (2)
In her second point of error, Falderbaum argues that even if the district court had subject-matter jurisdiction, the court erred in failing to abate the proceeding and yield jurisdiction to the probate
court, which Falderbaum argues had dominant jurisdiction to hear Lowe's claims. Pendency of a prior
suit between the same parties involving the same subject-matter must be seasonably pleaded by plea in
abatement. Day v. State, 489 S.W.2d 368, 371 (Tex. Civ. App.--Austin 1972, writ ref'd n.r.e.). In the
absence of such a plea, the objection is waived. Id. In the instant case, Falderbaum made her plea in
abatement after a default judgment on the writ of garnishment had been rendered against her. Therefore,
her plea in abatement came too late. See Cleveland v. Ward, 285 S.W. 1063, 1071-72 (Tex. 1926)
(final judgment by default in absence of seasonable pleading will be sustained).
Falderbaum attempted to challenge the court's jurisdiction nine days after the district court
had already granted the default judgment. In that untimely answer, Falderbaum alleged that the probate
court was the proper forum. Although Falderbaum had three options available to directly attack the
judgment, she did nothing to challenge the district court's jurisdiction over the default judgment except to
file her untimely answer. See Tex. R. Civ. P. 667. (3) She did not file a motion for new trial, for a restricted
appeal, or a bill of review. Jackson v. Van Winkle, 660 S.W.2d 807, 808 (Tex. 1983) (party may file
for new trial within thirty days of judgment being entered); General Elec. Co. v. Falcon Ridge
Apartments, Joint Venture, 811 S.W.2d 942, 943 (Tex. 1991) (party may file restricted appeal within
six months of judgment being signed); Steward v. Steward, 734 S.W.2d 432, 434 (Tex. App.--Fort
Worth 1987, no writ) (party may file for bill of review within four years of the final judgment being signed).
Therefore, once the district court properly exercised its concurrent jurisdiction to issue the writ of
garnishment, jurisdiction attached to hear all issues raised in the enforcement of the writ. See Morrow v.
Corbin, 62 S.W.2d 641, 644 (Tex. 1933) (jurisdiction not only includes authority to hear cases and enter
judgments, but also power to carry such judgments into effect). Falderbaum cannot now claim that the
district court lacks subject-matter jurisdiction to enforce the garnishment order when she failed to properly
challenge the trial court's jurisdiction when the writ of garnishment was originally issued.
Furthermore, even if this Court were to ignore the untimely plea in abatement and consider
the issue of whether the probate court had dominant jurisdiction to hear Lowe's claims, we believe the
district court was not required to abate the proceedings. Texas Probate Code Section 5A states that:
[w]here the jurisdiction of the statutory probate court is concurrent with that of the district
court, any cause of action that is appertaining to the estate or incident to the estate
shall be brought in the probate court.
Tex. Prob. Code Ann. § 5A (West 1998) (emphasis added). An action is "incident or appertaining" to
an estate when the outcome will have a direct bearing on the assimilation, collection, and distribution of the
decedent's estate. See English v. Cobb, 593 S.W.2d 674,676 (Tex. 1979).
While Falderbaum agrees that this case does not encompass the assimilation or collection
of funds, she does assert that it pertains to the distribution of funds, namely those due to John Smetek. We
disagree.
Lowe's pursuit of a writ of garnishment does not control how Falderbaum exercises her
duties as administratrix of the estate. It does not control when or how to distribute funds, nor how much
should be distributed. It is rather a judicial order specifying where the funds should be directed once the
amount due to the beneficiaries of the estate has been determined. Simply put, once the probate court
determines how much of the estate is due to John Smetek, the writ requires that Falderbaum pay that
amount to Lowe, not Smetek.
Additionally, Falderbaum cannot argue that the distributions are incident to the estate when
she intentionally circumvented all of the institutions and procedures that would have curtailed her
unauthorized distribution. She avoided the probate court and defied her statutory and personal duties as
the estate's representative when she made the $25,428.44 disbursement to Smetek. She cannot now seek
refuge in these same rules and procedures to avoid enforcement of the default judgment. Thus, the default
judgment and its subsequent enforcement action are not appertaining to nor incident to the estate. We hold
that the district court exercised valid, concurrent jurisdiction. We overrule Falderbaum's second point of
error.
CONCLUSION
Having overruled Falderbaum's two points of error, we affirm the judgment of the district
court.
Mack Kidd, Justice
Before Justices Aboussie, Jones and Kidd
Affirmed
Filed: March 5, 1998
Publish
1. Following the default judgment, Falderbaum filed an answer to Lowe's petition for writ of
garnishment, which in part challenged the district court's jurisdiction to hear the writ. As discussed herein,
this untimely answer was not the proper procedural mechanism to attack the court's judgment.
2. Moreover, at oral argument Falderbaum's counsel conceded that the district court did not lack
subject-matter jurisdiction.
3. Texas Rule of Civil Procedure 667 states:
If the garnishee fails to file an answer to the writ of garnishment at or before the time
directed in the writ, it shall be lawful for the court, at any time after judgment shall have
been rendered against the defendant, and on or after appearance day, to render judgment
by default, as in other civil cases, against such garnishee for the full amount of such judgment
against the defendant together with all interest and costs that may have accrued in the main
case and also in the garnishment proceedings. The answer of the garnishee may be filed as
in any other civil case at any time before such default judgment is rendered.
Tex. R. Civ. P. 667 (emphasis added).
hallenge the trial court's jurisdiction when the writ of garnishment was originally issued.
Furthermore, even if this Court were to ignore the untimely plea in abatement and consider
the issue of whether the probate court had dominant jurisdiction to hear Lowe's claims, we believe the
district court was not required to abate the proceedings. Texas Probate Code Section 5A states that:
[w]here the jurisdiction of the statutory probate court is concurrent with that of the district
court, any cause of action that is appertaining to the estate or incident to the estate
shall be brought in the probate court.
Tex. Prob. Code Ann. § 5A (West 1998) (emphasis added). An action is "incident or appertaining" to
an estate when the outcome will have a direct bearing on the assimilation, collection, and distribution of the
decedent's estate. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1625518/ | 464 So. 2d 542 (1985)
Ronald L. MARCOUX, Petitioner,
v.
Catherine M. MARCOUX, Respondent.
No. 65078.
Supreme Court of Florida.
February 14, 1985.
*543 Gary L. Rudolf of English, McCaughan & O'Bryan, Fort Lauderdale, for petitioner.
William I. Zimmerman, Pompano Beach, for respondent.
Cynthia L. Greene of the Law Offices of Melvyn B. Frumkes, Evan Langbein, Miami, Michael R. Walsh, Orlando, Marsha B. Elser, Chairman, and Brenda M. Abrams, Chairman-elect, Miami, amicus curiae for Family Law Section of The Florida Bar.
Richard A. Kupfer of Cone, Wagner, Nugent, Johnson, Hazouri & Roth, West Palm Beach, amicus curiae for The Academy of Florida Trial Lawyers.
SHAW, Justice.
This case is before us on petition for review of Marcoux v. Marcoux, 445 So. 2d 711 (Fla. 4th DCA 1984). We granted jurisdiction to answer a question certified to be of great public importance. Art. V, § 3(b)(4), Fla. Const.
The facts are outlined in the district court opinion. We add that the wife's permanent periodic alimony award was ordered by the trial court to be reduced from $1,250 to $750 monthly when the younger child, aged eleven at the time of the hearing, reaches her majority.
By the time of the final hearing the parties had agreed that primary child custody would be with the wife, with liberal visitation for the husband. Most of the evidence taken was related to property distribution. Conflicting evidence was given by each party's accountant regarding the value of the husband's fifty percent interest in Draughon and Marcoux, Inc., his most valuable asset. The disagreement was primarily over whether the business had goodwill value that made it worth substantially more than its book value. By the end of the hearing both sides agreed that the husband's average annual income since the inception of the business was almost $60,000.
The trial judge did not make findings specifying his assignment of value to Draughon and Marcoux, Inc., but the district court assumed, based on the total award to the wife, that the trial court had found it to have substantial goodwill value. The district court doubted that the corporation had substantial goodwill value, but did not reverse the trial court on this basis.
The district court affirmed the judgment below, stating that
[e]ven though we believe that the husband has been shortchanged, we reluctantly must affirm because of the recent Supreme Court decision in Conner v. Conner, 439 So. 2d 887 (Fla. 1983). That case holds that a determination that a party has been "shortchanged" is an issue of fact and not one of law and that a District Court exceeds its scope of appellate review in making such a determination. To the same effect is the more recent case of Kuvin v. Kuvin, 442 So. 2d 203 (Fla. 1983), where the Supreme Court reversed the Third District Court of Appeal based on the test of whether the judgment is supported by competent evidence.
Marcoux, 445 So.2d at 712. The district court then posed the following certified question:
DO CONNER V. CONNER, SUPRA, AND KUVIN V. KUVIN, SUPRA, LIMIT THE SCOPE OF APPELLATE REVIEW ENUNCIATED IN CANAKARIS V. CANAKARIS, 382 So. 2d 1197 (Fla. 1980)?
Id.
We answer the question in the negative. There is nothing in Conner v. Conner, 439 So. 2d 887 (Fla. 1983), or Kuvin v. Kuvin, 442 So. 2d 203 (Fla. 1983), that in any way limits the Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980), scope of *544 appellate review. On the contrary, Canakaris is cited in both cases. Kuvin elucidates a proper appellate application of Canakaris, emphasizing the need for appellate courts to apply the reasonableness test[*] in reviewing discretionary acts of trial courts. We said in Canakaris that the reasonableness test requires a "determination of whether there is logic and justification for the result." 382 So.2d at 1203. If a reviewing court finds that there is competent substantial evidence in the record to support a particular award, then there is logic and justification for the result and it is unlikely that no reasonable person would adopt the view taken by the trial court. Under these circumstances, there is no abuse of discretion.
Conner was a pre-Canakaris case at the trial level. The district court properly remanded to the trial court for consideration in light of Canakaris. However, the district court also made the finding that Mrs. Conner had been "shortchanged" in view of her contributions to the marriage. In so doing the district court acted as fact finder in the first instance, as the trial court had not made a finding relative to evidence of Mrs. Conner's contributions to her husband's success for the purpose of establishing her entitlement to property titled in his name only. An appellate court must review the trial court's finding of fact in light of the record to determine that a party has been "shortchanged," and the district court in Conner made this determination without first allowing the trial court to weigh the evidence to effect an equitable distribution of the separate property. Consequently, we remanded to the trial court for a further finding of fact regarding Mrs. Conner's contributions and it was that issue that we referred to as "an issue of fact." Conner is thus consistent with other cases dealing with the scope of appellate review in dissolution appeals, and it alters Canakaris not in the slightest.
In the present case, the district court found the valuation placed on Draughon and Marcoux, Inc. to be "the crux of this case," 445 So.2d at 712, but it could not conclude as a matter of law that the corporation had no substantial goodwill value. The district court nonetheless believed the husband was "shortchanged," but mistakenly interpreted Conner as saying that an appellate court may not review the facts to make such a determination.
The use of the term "shortchanged" in Brown v. Brown, 300 So. 2d 719 (Fla. 1st DCA 1974), and by this Court in Canakaris, may have contributed to the confusion regarding appellate review of dissolution cases. In Walter v. Walter, 464 So. 2d 538 (Fla. 1985), released today, we explain our interpretation of the term to be another way of saying that a trial court has acted unreasonably and thereby abused its discretion. We think it more appropriate when reviewing discretionary action to determine explicitly whether discretion was abused. An appellate court's conclusion on this issue is reached by applying the reasonableness test.
Due to the district court's misinterpretation of Conner and Kuvin, it has not reviewed the trial court's final judgment to determine whether it reflects a proper exercise of discretion. Expressing no view regarding the merits of this cause, we quash the district court decision and remand for reconsideration in light of this opinion.
It is so ordered.
BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur.
NOTES
[*] If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625528/ | 464 So. 2d 112 (1985)
Michael G. NORTHCUTT
v.
Helen Northcutt CLEVELAND.
Civ. 4537.
Court of Civil Appeals of Alabama.
January 16, 1985.
*113 William A. Robinson and Sandra K. Vinik of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellant.
Mary Lee Stapp and Lois Brasfield, Asst. Attys. Gen., for appellee.
HOLMES, Judge.
This is an action brought by the mother of two minor children residing in the state of Georgia, under the Uniform Reciprocal Enforcement of Support Act (URESA), against the father, a resident of Alabama.
The Family Court of Jefferson County entered a judgment against the father and ordered payment of support in the amount of $200 per month per child. The father, *114 through able counsel, appeals and we affirm.
The father contends that an action brought pursuant to URESA was not appropriate, that the URESA petition should not have been entered into evidence, that venue is not proper in Jefferson County, and that the trial court abused its discretion in the amount of child support payments.
The facts in pertinent part are that the mother and father were married in May of 1969. The father adopted the mother's two children from a previous marriage. Within two years the parties were divorced, and later the mother and children moved to Georgia.
Under the original divorce decree, the mother was given the complete care, custody, and control of the children, and the father was not ordered to make any support payments.
Eleven years after the divorce, the mother initiated an action under the Uniform Reciprocal Enforcement of Support Act, seeking to impose a child support obligation on the father.
As stated, after trial the court ordered the father to pay support to the children, who were at the time of trial eighteen years eleven months old and seventeen years five months old, in an amount of $200 per month per child.
At this point, we note the father alludes to the prospect that this court may not have appellate jurisdiction of this case. We believe that under Rule 28, Alabama Rules of Juvenile Procedure, and in accordance with Wright v. Montgomery County Department of Pensions and Security, 423 So. 2d 256 (Ala.Civ.App.1982), appellate jurisdiction is proper in this court.
The father contends that the URESA action was not a proper action in this case because there was no duty of support and that a modification proceeding should have been initiated in order to gain support payments from the father.
We have stated that there is always a duty of support by a parent even when the divorce decree gives custody to the mother and does not order support from the father. The right to support is inherent and it cannot be waived even by agreement. Willis v. Levesque, 402 So. 2d 1003 (Ala.Civ.App.1981).
The purpose of URESA is to improve and extend the enforcement of duties of support and to make the support laws of states that adopt the act uniform. Ex parte O'Neill, 420 So. 2d 264 (Ala.1982).
Under Alabama's URESA, section 30-4-81, Ala.Code (1975), the duty of support is defined as that "imposed or imposable by law or by any court order, decree or adjudgment, whether interlocutory or final, whether incidental to a proceeding for divorce, judicial separation, separate maintenance or otherwise." (Emphasis added.)
In Armstrong v. Sparks, 360 So. 2d 1012 (Ala.Civ.App.1978), this court stated that if the original divorce decree makes no provision for the support of a child, the proof of changed circumstance that is required in a modification proceeding is not relevant because there is nothing to modify. Thus, a modification proceeding is not appropriate and proof of changed circumstances is not required.
Here, there was no provision for the support of the children by the father in the original divorce decree and, therefore, nothing to modify. Because the father had adopted the children, under Alabama law, as a parent, the inherent duty to support is always imposable, and the URESA action was properly initiated.
We further note the following found in Willis v. Levesque, 402 So. 2d 1003, 1004 (Ala.Civ.App.1981):
"The order of support in a case of reciprocal support does not in any manner `supersede,' overcome or replace an order of child support in a divorce casethat is exactly what the statute says. However, the order in such a case is cumulative; that also is provided by statute. Section 30-4-98 provides: `The remedies provided in this article are in addition to and *115 not in substitution for any other remedies.'"
Since this is not a modification proceeding and the remedies are "in addition to" those given and not meant to "supersede" the original divorce decree, it clearly appears that the URESA action was proper.
The father next contends that the trial court erred in admitting the URESA petition into evidence because it contained inaccuracies which the father denied.
In O'Hara v. Floyd, 47 Ala.App. 619, 622, 259 So. 2d 673, 675 (1972), in a URESA action, this court stated the following:
"If the defendant appears and files answer denying or traversing the allegations of the petition, the duty is upon petitioner to prove her claim with legal evidence as in any other case. The act provides such evidence may be obtained by interrogatories or depositions taken either in or out of the responding state. Of course, any other legal evidence may be offered."
Here, the father denied the allegations of the petition, and the court ordered the mother to submit to a deposition concerning the matters set forth in the petition. Documents were also ordered to be produced.
The deposition was taken in which the father had a right of cross-examination. This, along with the documents that were produced, was entered into evidence.
It appears that there was ample evidence in the deposition and documents from which the trial court could find a duty of support independent of the petition. Even though there were inaccuracies in the petition, in view of the ample evidence that was introduced by deposition, these inaccuracies appear to this court to be harmless error. See Rule 45, Alabama Rules of Appellate Procedure.
Hence, there was no reversible error in admitting the petition into evidence.
Thirdly, the father argues that venue is improper in Jefferson County and that the action should have been brought in Montgomery County, where the original divorce decree was entered.
The father's contentions for improper venue are grounded on the assumption that this action is a modification proceeding.
Section 30-3-5, Ala.Code (1975), states that venue of all proceedings or petitions or other actions seeking modification of a final decree is in the original court granting custody of the minor children or in the county where both the custodial parent and the minor children live.
It appears that this statute applies only to petitions to modify an order of divorce. As stated earlier, this case is not a modification proceeding because there is nothing to modify. See Armstrong v. Sparks, 360 So. 2d 1012 (Ala.Civ.App.1978). Therefore, under this authority, venue is not improper in Jefferson County.
Because the URESA law was designed to provide a convenient way to cause those who are obligated to support their minor children to do so, and under the authority of the venue law of this state, it appears that venue would be proper in Jefferson County, where the father resides. See generally Rule 82, Alabama Rules of Civil Procedure.
Finally, the father contends that there is not sufficient evidence to substantiate the amount of child support and that this court must examine the evidence without any presumption in favor of the trial court.
There was evidence that the wife had a substantial income, lived in a large house, and owned several cars. However, there was additional evidence that the wife owed money on the house, both to a former husband and to a mortgage company, and also owed amounts on the cars that she owned.
There was also testimony that the son is in college, living in a dormitory, and that the daughter experiences mental problems, which required her to stay in a psychiatric hospital for five months in 1983.
It was stipulated that the father earns $420 per week as a salesman and lives with his wife and stepchild.
The concern of this court must be the best interest of the children, and the *116 issue of child support should not be viewed as a contest between the parents. In addition, the fact that the mother earns more than the father does not relieve him of his duty to support. Hamilton v. Hamilton, 428 So. 2d 65 (Ala.Civ.App.1983).
The amount of child support to be awarded depends upon the needs of the children and the ability of the parent to pay. Johnson v. Johnson, 446 So. 2d 622 (Ala.Civ.App.1983).
We note here that the son reached majority two weeks after the court entered its judgment, and the father was apparently only required to support the son for that two-week period.
In view of the father's income, the disability of the daughter, and the apparent length of the support, it appears to this court that there was evidence to support the trial court's award of child support, and such support would be in the best interest of the children.
Therefore, this case is due to be and is affirmed.
AFFIRMED.
WRIGHT, P.J., and BRADLEY, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625514/ | 689 S.W.2d 396 (1985)
The Honorable Charles Ben HOWELL, Judge, Relator,
v.
The FIFTH COURT OF APPEALS et al., Respondents.
No. C-3307.
Supreme Court of Texas.
February 6, 1985.
Rehearing Denied May 29, 1985.
Henry Wade, Dist. Atty., Henry J. Voegtle, III, Asst. Dist. Atty., Dallas, for relator.
Michael A. Robertson, Grand Prairie, Dwight I. Porter, Ronald W. Johnson, Diamond J. Panteze, Dallas, for respondents.
CAMPBELL, Justice.
This is an original mandamus action. The Court of Appeals for the Fifth Supreme Judicial District ordered the Honorable Charles Ben Howell, relator, to allow a nonsuit in a case filed in his court, the 191st Judicial District of Dallas County. Judge Howell seeks to have the court of appeals' order vacated.
On March 17, 1984, Brenda J. Farnham sued Hilti, Inc. and Mark Spiegal to recover damages for the death of her husband, Stephen Douglas Farnham. Brenda also sued as next friend of her minor children, Christina Mechelle and Chad Douglas Farnham, and as representative of Stephen's estate. Francis Lincoln Farnham, the deceased's father, and David Klucker also sued to recover damages for Stephen's death.
The parties negotiated a settlement and requested Judge Howell's approval of the agreement. Judge Howell appointed Diamond J. Pantaze to represent the children as guardian ad litem. Judge Howell orally appointed Pantaze on May 15 and the appointment is noted on the docket sheet. On May 21, Brenda Farnham, individually and in her representative capacities, filed a nonsuit. A written order appointing Pantaze was signed on June 5. Judge Howell refused to allow the nonsuit.
The court of appeals, by mandamus, ordered Judge Howell to allow the nonsuit. Judge Howell now seeks to have the court of appeals' judgment vacated.
In oral argument this court was advised that Brenda J. Farnham, individually and in representative capacities, and the other plaintiffs, filed suit in the 348th Judicial District in Tarrant County. This suit involved the same parties and was based on the same occurrence as the Dallas County suit. A final judgment was rendered.
Further, the Tarrant County district court judgment, dated June 15, 1984, reflects that another guardian ad litem was appointed to represent the two minor children. In that judgment, Brenda is to receive $343,500 in cash from which all attorneys *397 fees and court costs are to be deducted; $25,000 is to be placed in an interest-bearing account and released to Christina on her 18th birthday, and $20,000 is to be placed in a similar account to be released to Chad on his 18th birthday. Brenda is to receive $1,300 per month and a lump sum payment of $25,000 in five years, $50,000 in ten years, $75,000 in fifteen years and $100,000 in twenty years. Christina is to receive $10,000 per year for five years beginning on her 18th birthday. Chad will receive $10,000 per year for four years beginning on his 18th birthday and $15,000 on the fifth year after he reaches 18.
The judgment rendered in Tarrant County is final. Therefore, the mandamus is denied.
ROBERTSON, J., concurs.
GONZALEZ, J., dissents, in which McGEE and KILGARLIN, JJ., join.
ROBERTSON, Justice, concurring.
I concur in the result reached by the majority because I am of the opinion that the court of appeals decision is moot. It has come to the attention of this court that the Honorable Charles Ben Howell is no longer the judge of the 191st judicial district court of Dallas County, Texas. This court has stated that "[a] writ of mandamus will not lie against a successor judge in the absence of a refusal by him to grant the relief Relator seeks." State of Texas v. G.C. Olsen, 163 Tex. 449, 360 S.W.2d 402, 403 (1962). Since the judgment of the court of appeals is moot, no purpose would be served by permitting Judge Howell's mandamus action to vacate that judgment.
The proper action would be for relators in the court of appeals to request Judge Howell's successor in office to reconsider the decision to refuse approval of the nonsuit. See Jampole v. Touchy, 673 S.W.2d 569, 572 (Tex.1984). A mandamus action could be reasserted, should Judge Howell's successor decline to do so. For this reason, I reserve decision on the substantive questions discussed in the majority opinion for a more appropriate case.
GONZALEZ, Justice, dissenting.
I respectfully dissent. The validity and finality of the judgment rendered in Tarrant County is not before us. Even if it was, when a guardian ad litem is appointed, I would not allow an attorney to take a non-suit and forum shop when he encounters a guardian ad litem or a court that would not rubber stamp a proposed settlement agreement.
This original proceeding requires that we examine the actions of the Fifth Court of Appeals in the instant case. I would hold that the court of appeals abused its discretion by directing relator to enter a non-suit on behalf of all parties plaintiff prior to a determination that it was in the best interest of the minor plaintiffs. I would order that the court of appeals withdraw its conditional writ of mandamus.
The order appointing Pantaze guardian ad litem was noted on Judge Howell's docket sheet on May 15, 1984. Mrs. Farnham's attorney sent a letter to Pantaze on May 16, confirming a phone conversation the previous day in which he informed Pantaze of his appointment as guardian ad litem. The letter also discussed the settlement terms and the parties involved. Further, a letter from Judge Howell concerning the suit was sent to all counsel in the case on May 18. Judge Howell noted thereon that a copy was to be sent to Pantaze. These actions were sufficient to confirm the oral appointment of Pantaze as guardian ad litem prior to the May 21 filing of Brenda Farnham's motion for non-suit even though the written order appointing him was not signed until June 5. Douglas v. Corder, 366 S.W.2d 615 (Tex.Civ.App.Amarillo 1963, writ ref'd n.r.e.); see also Dunn v. Dunn, 439 S.W.2d 830 (Tex.1969); Cole v. Waite, 151 Tex. 175, 246 S.W.2d 849 (1952); Texas State Board of Examiners in Optometry v. Lane, 337 S.W.2d 801 (Tex.Civ. App.Fort Worth 1960, writ ref'd). Therefore, the two minor children were represented by Pantaze in his appointed capacity at the time Mrs. Farnham attempted to non-suit this cause.
*398 A parent or guardian, as next friend, may bring suit on behalf of a minor pursuant to Tex.R.Civ.P. 44. The next friend is present in the suit in a representative capacity only, and the minor remains the real party in interest. Gracia v. RC Cola7-UP Bottling Company, 667 S.W.2d 517 (Tex.1984). "The bringing of a suit by next friend for a minor in no way changes his status; his disabilities are not suspended by bringing such suit (citation omitted) and his interests must, in good faith, be fully protected; he is sui non juris and altogether under the court's protection. (citation omitted)" M.K.T. Rwy. Co. of Texas v. Pluto, 138 Tex. 1, 156 S.W.2d 265, 268 (1941).
The protection by the court of the interest of a minor plaintiff requires that a guardian ad litem be appointed when the minor "is represented by a next friend or guardian who appears to the court to have an interest adverse" to the minor. Tex.R. Civ.P. 173. When the circumstances evidence a potential adverse interest between the next friend and the minor, the court is required by the rule to appoint a guardian ad litem. Tex.R.Civ.P. 173; Newman v. King, 433 S.W.2d 420 (Tex.1968). The guardian so appointed is to assist the court in its protection of the interests of the minor. Dawson v. Garcia, 666 S.W.2d 254 (Tex.App.Dallas, 1984, no writ).
The facts of the instant case illustrate the need for safeguards of this type inasmuch as the mother, who was twenty-five years old, was given over 90% of the proposed settlement value. Through the briefs of counsel it was disclosed to this court that the settlement agreement before Judge Howell provided that the mother was to receive $425,000 in cash, from which amount the subrogation payment and attorney's fees were to be paid. Further, Mrs. Farnham was to receive $1300 per month for life (20 years guaranteed) with an annual increase of 4%; and lump sum payments of $25,000 in the 5th year, $50,000 in the 10th and 15th years, and $100,000 in the 20th year. The two children, Christina (age 6) and Chad (age 2) were each to receive $10,000 per year for 5 years beginning on their 18th birthdays.
When a parent sues on his or her own behalf and also as a representative of minor children for injuries arising out of the same occurrence a conflict of interests between the two often arises, particularly in a settlement situation where the parties vie for different portions of a fixed settlement amount. See Pluto, 156 S.W.2d 265; Gallegos v. Clegg, 417 S.W.2d 347 (Tex.Civ. App.Corpus Christi 1967, writ ref'd n.r. e.). When it appears to the court that a conflict of interest exists between the next friend and the minor, the next friend is no longer competent to represent the minor. Pluto, 156 S.W.2d at 267. Further, a judgment entered in favor of a minor in such a situation where he is represented by only a next friend is not binding on him, and he may thereafter sue to have it set aside because of inadequate representation of his interests. Pluto, 156 S.W.2d 265; Gallegos, 417 S.W.2d 347. In this case, Judge Howell had, pursuant to the mandate of Tex.R.Civ.P. 173, appointed a guardian ad litem for Christina and Chad.
At the time that the court appointed the guardian, Brenda Farnham lost her rights of representation on behalf of the minors. As a result, she had no authority to take a non-suit as to the claims filed by the minors, who were, after all, the real parties in interest. The trial court and the guardian ad litem, acting jointly for the best interests of the children, had the sole authority at that point to move for and allow a non-suit on behalf of the children. Respondents cite Greenberg v. Brookshire, 640 S.W.2d 870 (Tex.1982) to support their contention that the trial court had no authority to refuse Brenda Farnham's motion to non-suit as to the children. This argument ignores the fact that, at the time the motion was made, Mrs. Farnham lacked the legal capacity to represent the children, and therefore could not make the motion on their behalf. I would allow the court to hold the requested and scheduled hearing to determine if the motion is in the best interest of the minors.
To hold otherwise, as the court does, is to emasculate the protections afforded incompetent *399 plaintiffs by Tex.R.Civ.P. 173. A court or guardian ad litem is placed in a powerless position when faced with a potentially unfair settlement agreement and a next friend or guardian with conflicting interests. Either the interests of the minor must be compromised, or the court faces the distinct possibility that the representative will, as in this case, non-suit the entire case and forum shop for another court more willing to approve the settlement.[1]
I would, therefore, conditionally issue a writ of mandamus directing the court of appeals to withdraw its order, and allow relator to reinstate this cause and determine the propriety of a non-suit as to the interest of the children.
McGEE and KILGARLIN, JJ., join in this dissenting opinion.
NOTES
[1] The parties agree that Pantaze was not notified of the Tarrant County suit until after that judgment was rendered. Therefore, he had no opportunity to file either a plea in abatement or a plea to the jurisdiction of the court over the children. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625515/ | 464 So. 2d 819 (1985)
Norma Goessling BILLAC
v.
Bernard J. BILLAC.
No. 84-CA-299.
Court of Appeal of Louisiana, Fifth Circuit.
February 11, 1985.
Rehearing Denied March 18, 1985.
*820 Andrew W. Weir, Weir & Robinson, Metairie, Philip R. Riegel, Jr., Parlongue & Riegel, New Orleans, for plaintiff-appellant.
Ferdinand J. Kleppner, Law Offices of Ferdinand J. Kleppner, Metairie, for defendant-appellee.
Before BOUTALL, KLIEBERT and CURRAULT, JJ.
KLIEBERT, Judge.
This is an appeal by Norma Goessling Billac, the wife, from a judgment granting her husband, Bernard J. Billac, a separation from bed and board and finding her at fault in causing the separation. She assigns as error the trial court's granting to the husband a judgment of separation from bed and board which he did not pray for and on what she contends was on grounds he neither alleged or proved. She further assigns as error the trial judge's refusal to permit her to introduce evidence as to alleged acts of cruelty which occurred after she moved out of the matrimonial bed, but before her petition for separation from bed and board was filed.
The husband answered the appeal contending the judgment rendered in his favor should have been for a full divorce, as he had prayed for, rather than a separation from bed and board.
For the reasons which follow, the judgment of the district court is reversed and set aside and the plaintiff's petition and the defendant's reconventional demand are dismissed.
In September 1980 the wife filed a petition for a separation from bed and board alleging that (1) she and her husband had lived in separate bedrooms of the community residence without conjugal relations since 1978, and (2) the husband made various threats and committed specific acts of cruel treatment against her after the cessation of the conjugal relations, and prayed for a separation from bed and board.
In response the husband filed exceptions of no right of action and no cause of action grounded in the contentions the parties were not living separate and apart as required to support an action for separation from bed and board, and by remaining in the same residence with the husband the wife condoned the alleged acts of cruelty. The then trial judge dismissed the exceptions and gave extensive reasons for doing so.
On April 14, 1981, following the dismissal of the exceptions, the husband filed a general denial coupled with a reconventional demand for a divorce on the grounds more than one year had expired since he and his wife had commenced living separate and apart. The reconventional demand also alleged specific acts of cruelty on the wife's *821 part and prayed for a declaration the husband was free of fault.
At the commencement of the trial[1] the judge informed the parties he could not hear the husband's divorce action based on their having lived separate and apart for more than one year because the parties were still living in the same house, but he could hear the separation action because it was based on cruel treatment rather than having lived separate and apart for the prescribed time. Nevertheless, after the wife testified that at the end of 1978 she moved to a separate bedroom in the house because of her husband's impotence and his frustrations over same, the trial judge refused to permit her to introduce evidence as to the husband's cruel treatment on the grounds it was post-separation fault. Counsel for the wife, however, proffered the evidence. Upon concluding the taking of proffered evidence the husband rested without introducing any evidence in defense of the wife's action in support of his reconventional demand.
Following this, the trial judge ruled as follows:
".... The Court finds Norma Goessling Billac to be at fault for the separation in that she separated because, as her testimony, at the end of 1978 because her husband had become impotent. She moved out of the quarters where they had been living previously. The Court considers that as a separation, and it would be the same thing as if she had moved out of the house or out of the state or out of the city. It is a legal separation. They intended to separate...."
Thereafter, although the husband had only prayed for a full divorce, the trial judge granted to the husband a separation from bed and board based on their having lived separate and apart for more than one year and found the wife at fault for having removed herself from the matrimonial bedroom and therefore dismissed her suit for separation from bed and board.
Living separate and apart for specified periods can be grounds for both separation and divorce. However, in order to fulfill the "separate and apart" criterion in the Code, the parties must actually reside in different dwellings. Singleton v. Rogers, 160 La. 196, 106 So. 781 (1926). That the parties have separated must be "visible to the community;" they must live apart in such a manner that others are aware of the separation. Quinn v. Brown, 159 La. 570, 105 So. 624 (1925); Arnoult v. Letten, 155 La. 275, 99 So. 218 (1924); Hava v. Chavigny, 147 La. 330, 84 So. 892 (1920). This line of jurisprudence was so well settled in the 1920's that few cases raise the issue now. Nevertheless, as late as 1977, in Boyd v. Boyd, 348 So. 2d 121 (4th Cir.1977), the court reiterated the "visible to the community" standard established in the earlier cases.
We hold, therefore, that the trial judge erred in rendering a separation from bed and board based on the parties having lived separate and apart for more than one year. As connoted by the name, i.e., a separation from bed and board, a mere separation from bed is not sufficient to support a judgment of separation from bed and board, for there must be a separation from board as well as from bed before the cause of action arises. Further, as was held by our brothers in the Second Circuit, the wife's admission of sleeping in a separate bedroom because her husband has lost his sex drive does not constitute fault on her part. Burnett v. Burnett, 324 So. 2d 622 (2nd Cir.1975).
Accordingly, the trial court's judgment is reversed and set aside. The wife's petition for a separation from bed and board and the husband's reconventional demand is dismissed. Each party to bear his own cost.
REVERSED, SET ASIDE AND DISMISSED.
NOTES
[1] By the time of trial each party had changed attorneys and the case had been assigned to a different trial judge from the one who had heard the preliminaries. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625519/ | 689 S.W.2d 551 (1985)
286 Ark. 102
HANDY DAN HOME IMPROVEMENT CENTER, INC.ARKANSAS, Appellant,
v.
Eugene PETERS, Appellee.
No. 85-9.
Supreme Court of Arkansas.
May 20, 1985.
Wright, Lindsey & Jennings, Little Rock, for appellant.
Greene Law Offices by Brent Baber, Little Rock, for appellee.
PURTLE, Justice.
The jury awarded appellee the sum of $12,500 in his slip and fall suit against the appellant. On appeal it is argued that the trial court erred in giving an instruction on future pain and suffering and permanent injury and in not directing a verdict for the appellant at the close of the appellee's case. With these two arguments we do not agree and accordingly affirm the judgment.
On September 28, 1983, appellee went into appellant's store for the purpose of *552 purchasing merchandise. While in the store he stepped into some kerosene and fell thereby injuring his arm and shoulder. A few minutes before the appellee fell another customer had knocked over a can of kerosene and part of it spilled on the floor. An employee of appellant estimated that the spill occurred about ten minutes before appellee fell. Appellant's employees testified they were in the process of cleaning up the spill when appellee slipped and fell. There is no dispute of the fact that appellee slipped and fell in the kerosene which a customer spilled. The employees testified that the area was barricaded by use of shopping carts and a chair. The appellant indicated he was in search of a shopping cart when he walked onto the kerosene. There is a direct dispute in the evidence as to the manner of containment of the substance and the degree of protection offered by appellant.
The appellant must have been negligent in allowing the substance to be on the floor or have failed to use ordinary care to remove it before liability attaches. Weingarten, Inc. v. Thompson, 251 Ark. 914, 475 S.W.2d 697 (1972); Owen v. Kroger Company, 238 Ark. 413, 382 S.W.2d 192 (1964); AMI 1105. There is no evidence abstracted reflecting negligence on the part of the appellant in allowing the kerosene to spill on the floor. There is substantial evidence that the appellant did not use ordinary care in removing the substance or protecting the public from being injured by such action as described by the appellee. Appellant's employees observed the spill of the kerosene as well as the slip and fall by the appellee. One employee tried to warn the appellee to not walk into the kerosene but it was too late by the time he noticed the appellee. The photographs introduced by appellant as depicting the scene were taken several days after the injury and no doubt the jury took this into consideration. We hold that the court properly presented the issue of negligence to the jury. See Pfeifers of Arkansas v. Rorex, 225 Ark. 840, 286 S.W.2d 1 (1956).
The other argument by the appellant is that the court erred in instructing the jury on the matter of future pain and suffering and permanent disability. The trial court apparently gave AMI 2213(a) and (b) on damages over appellant's objection that there was no evidence of future pain and suffering or permanent injury. Evidence of future pain and suffering and permanent disability must be established with reasonable certainty and it must not be left up to speculation or conjecture on the part of the jury. Welter v. Curry, 260 Ark. 287, 539 S.W.2d 264 (1976); McCord v. Bailey and Mills, 195 Ark. 862, 114 S.W.2d 840 (1938). Permanency may be established by the nature and extent of the injury. Duckworth v. Stephens, 182 Ark. 161, 30 S.W.2d 840 (1930). Persistency of the injuries is a matter to be considered. Belford v. Humphrey, 244 Ark. 211, 424 S.W.2d 526 (1968). Although medical testimony may fail to present a jury question on future pain and suffering, lay testimony may be used to present the issue to the jury. Bailey and Davis v. Bradford, 244 Ark. 8, 423 S.W.2d 565 (1968).
The appellee had been treated by several doctors. One physician testified (stipulated) that appellee had probably torn the rotator cuff in his shoulder and that surgery had been discussed. Several months after the injury the doctor stated an examination of the shoulder revealed abduction to only about 80° Internal and external rotation was limited to about 60° of normal. He also stated there appeared to be muscle atrophy and neurological deficit reaching the infra spinatus and posterior deltoid. The final doctor's report, made about five months after the injury, indicated appellee was still suffering pain but not enough to require surgery at the time. Several lay witnesses, including the appellee, stated appellee still held his regular job but he could not do as much work as he did before the injury. His own estimate was that he could do two-thirds of the work he did previously. He was a butcher and it was necessary for his employer to have other employees do part of his work. The injuries still caused him pain at the time of the *553 trial and had been stable about three months. He further testified he could no longer paddle a boat and therefore could not fish like he did before. Other witnesses testified that appellee was still taking medication and appeared to still be suffering pain.
There is a reasonable inference from the treating physician that the appellee will continue to have pain in the future and that he has some residual disability. Additionally there was testimony by appellee and his acquaintances that he was still complaining of pain and taking medication. Also, there was testimony that he could not do as much work as he could before the injury. If there is substantial evidence to support the judgment below we must affirm. Kelly v. Cessna, 282 Ark. 408, 668 S.W.2d 944 (1984).
Affirmed.
HICKMAN, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625506/ | 996 F. Supp. 303 (1998)
Charles FRIEDMAN and Shirley Friedman, Plaintiffs,
v.
CUNARD LINE LIMITED, a New York corporation; and Golden Door, Inc. a California corporation, d/b/a Golden Door Spa at Sea, Defendants.
No. 95 Civ. 5232(CSH).
United States District Court, S.D. New York.
March 9, 1998.
*304 Meyner and Landis, Newark, NJ (William J. Fiore, of counsel), for Plaintiffs.
Kirlin, Campbell & Keating New York City (Pamela L. Milgrim, of counsel), for Defendant, Cunard Line Ltd.
MEMORANDUM OPINION AND ORDER
HAIGHT, Senior District Judge.
This case presents the question whether a nondependent spouse of a cruise ship passenger injured on the high seas may recover nonpecuniary damages for loss of society and consortium in federal court.
*305 I
Plaintiffs Charles and Shirley Friedman are husband and wife. They reside in New Jersey. In August 1994 plaintiffs were passengers on the cruise ship SEA GODDESS II, owned and operated by defendant Cunard Line Limited ("Cunard"). The cruise was between Mediterranean Sea ports. The vessel did not call at any American port.
Shirley Friedman retired from her occupation in 1988. Charles Friedman retired in 1993. They were both 73 years old at the time of the accident in suit.
On August 4, 1994, Shirley Friedman was injured when she fell while participating in an aerobics class being conducted in the vessel's main salon for the benefit and entertainment of the passengers. At the time of the accident the SEA GODDESS II was anchored on the high seas off the Greek island of Skiathos.
An employee of Golden Door, Inc., a health center operator under contract to Cunard, was conducting the aerobics class. Plaintiffs commenced this action against Cunard and Golden Door. In an opinion dated November 5, 1997, familiarity with which is assumed, the Court granted Golden Door's motion to dismiss the complaint as to it or lack of personal jurisdiction, and denied Cunard's motion for summary judgment on the issue of liability.
The case is now before the Court on Cunard's motion for partial summary judgment dismissing Charles Friedman's claims for loss of society and consortium damages. Shirley Friedman's claims for her injuries are not implicated by this motion. Cunard contends that Charles Friedman's nonpecuniary claims are not recoverable under the governing general maritime law as declared by federal courts.
II
The threshold question is whether American general maritime law governs the case, as Cunard claims. Plaintiffs say it does not because diversity of citizenship is the only basis for subject matter jurisdiction they pleaded in their complaint. When a federal court's subject matter jurisdiction depends solely upon diversity, the court follows the choice-of-law rules of the state in which it sits. Plaintiffs reason that this would lead to the application of either New York or New Jersey substantive law, which would support Charles Friedman's "claim for loss of society and consortium." Brief at 5.[1]
I cannot accept that reasoning. Plaintiffs' pleading cannot control the question of subject matter jurisdiction. The existence vel non of admiralty jurisdiction in tort depends upon the circumstances of the incident, and controls the governing law. "With admiralty jurisdiction comes the application of substantive admiralty law. Absent a relevant statute, the general maritime law, as developed by the judiciary, applies. Drawn from state and federal sources, the general maritime law is an amalgam of traditional common-law rules, modifications of those rules, and newly created rules." East River Steamship Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 864-65, 106 S. Ct. 2295, 90 L. Ed. 2d 865 (1986).
Where a tort falls within admiralty jurisdiction, the general maritime law applies, even if the plaintiff's complaint pleaded diversity of citizenship as the sole basis for subject matter jurisdiction. That is the holding of Wahlstrom v. Kawasaki Heavy Industries, Ltd., 4 F.3d 1084 (2d Cir.1993), cert. denied, 510 U.S. 1114, 114 S. Ct. 1060, 127 L. Ed. 2d 380 (1994), a wrongful death case arising out of a collision between vessels on a navigable waterway within Connecticut territorial waters. Although in their complaint *306 plaintiffs, the parents of the decedent, based federal jurisdiction solely upon diversity of citizenship and sought damages pursuant to Connecticut law, the Second Circuit observed that a collision between vessels on navigable waters "comes within the admiralty jurisdiction of the federal courts," and that "[w]ith this jurisdiction comes the application of substantive maritime law, and absent a relevant federal statute, we apply the maritime law as developed by the courts." The Second Circuit proceeded to apply the general maritime law to the claims asserted in Wahlstrom, in derogation of Connecticut law. See also Carey v. Bahama Cruise Lines, 864 F.2d 201, 206 (1st Cir.1988) (in suit for injury suffered by cruise ship passengers, "[t]he mere fact that the plaintiffs invoked the diversity of citizenship jurisdiction of the district court does not preclude the application of maritime law.").
Seeking to avoid the general maritime law, plaintiffs at bar rely upon Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69 (3d Cir.1996). Plaintiff, a passenger on a cruise ship, slipped and fell while taking a shower in the bathtub in her cabin. She sued the shipowner for negligence, on the theory that there were insufficient abrasive strips on the floor of the tub to prevent her from slipping. Plaintiff, "neither [pleading] nor otherwise [invoking] the admiralty jurisdiction of the district court," filed her original complaint in a New Jersey state court; the shipowner "removed the case to federal district court on the basis of diversity jurisdiction." 82 F.3d at 73. Plaintiff did not amend her complaint to invoke admiralty jurisdiction. "The district court entered a pretrial order without objection from the parties stating that the jurisdictional predicate was diversity of citizenship," and "the parties agreed at oral argument [of defendant's motion for summary judgment] they are satisfied with the application of New Jersey state law. It is New Jersey law that we will apply." Id.
In other words, the Third Circuit regarded the plaintiffs as "the master of her complaint," 82 F.3d at 73, and allowed her to avoid the general maritime law, even though "[a]dmiralty jurisdiction apparently exists since the injury occurred on navigable waters, and the incident has a nexus to traditional maritime activity." Id. (internal quotation marks and citations omitted).
I think it is a doubtful proposition that parties, who cannot by their agreement vest a federal district court with subject matter jurisdiction that does not exist, can agree to divest the court of jurisdiction that unquestionably exists. If that is the Third Circuit's view, I am not bound by it. In any event, Fedorczyk is distinguishable on the facts from the case at bar, since unlike the compliant shipowner in that case, the defendant at bar pleaded in its answer that the general maritime law governed the parties' rights and obligations.
III
While a plaintiff may not be allowed to draft his pleading so as to oust the district court of admiralty jurisdiction otherwise present, it does not follow from that general proposition that the particular case falls within that jurisdiction. Accordingly it is necessary to consider whether the tort plaintiffs allege is "maritime" in nature.
Determination of the question whether "a tort is `maritime' and thus within the admiralty jurisdiction of the federal courts has traditionally depended upon the locality of the wrong. If the wrong occurred on navigable waters, the action is within admiralty jurisdiction; if the wrong occurred on land, it is not." Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 253, 93 S. Ct. 493, 34 L. Ed. 2d 454 (1972). However, during more recent years, at least in respect of torts occurring on navigable waters within the United States, the Supreme Court has imposed an additional requirement "that the wrong must bear a significant relationship to traditional maritime activity." East River Steamship Corp., 476 U.S. at 864 (internal quotation marks omitted). The Supreme Court characterizes that requirement as one of a "maritime nexus," Id.; the Second Circuit has used the words "situs" and "status" to characterize these two jurisdictional requirements. See Keene Corp. v. United States, 700 F.2d 836, 843 (2d Cir.1983) ("Admiralty jurisdiction in tort exists when the *307 wrong (1) took place on navigable waters ("situs") and (2) bear[s] a significant relationship to traditional maritime activity ("status"))."
In Executive Jet the Court declined to find the requisite maritime nexus in a case where a jet aircraft crash-landed and sank in the navigable waters of Lake Erie shortly after takeoff from a Cleveland airport. In Foremost Insurance Co. v. Richardson, 457 U.S. 668, 102 S. Ct. 2654, 73 L. Ed. 2d 300 (1982), the Court made it clear that the maritime nexus requirement articulated in Executive Jet was not limited to aviation tort cases; but Foremost Insurance found a sufficiently significant relationship to traditional maritime activity in a collision between two small pleasure boats on a river in Louisiana, notwithstanding the fact that neither boat was being used for commercial purposes. The Court explained:
In light of the need for uniform rules governing navigation, the potential impact on maritime commerce when two vessels collide on navigable waters, and the uncertainty and confusion that would necessarily accompany a jurisdictional test tied to the commercial use of a given boat, we hold that a complaint alleging a collision between two vessels on navigable waters properly states a claim within the admiralty jurisdiction of the federal courts.
457 U.S. at 677.
In Sisson v. Ruby, 497 U.S. 358, 110 S. Ct. 2892, 111 L. Ed. 2d 292 (1990), the Court sustained admiralty jurisdiction in a case where a pleasure yacht caught fire while docked at a Lake Michigan marina, destroying the yacht and damaging several neighboring vessels and the marina. In considering whether the boat owner, seeking to invoke maritime jurisdiction, had shown "a substantial relationship between the activity giving rise to the incident and traditional maritime activity," the Court concluded that "the relevant activity was the storage and maintenance of the vessel at a marina on navigable waters." 497 U.S. at 364-65 (footnote omitted).
It will be noted that Executive Jet, Foremost Insurance, and Sisson v. Ruby all involved accidents occurring on waters that were both navigable and within state territorial boundaries. In contrast, the injuries suffered by plaintiff Sheila Friedman occurred on board a vessel on the high seas. I think the distinction is a vital one, in view of what the Supreme Court said in East River Steamship Corp., 476 U.S. at 864:
When torts have occurred on navigable waters within the United States, the court has imposed an additional requirement of a "maritime nexus" that the wrong must bear "a significant relationship to traditional maritime activity." See Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 268, 93 S. Ct. 493, 34 L. Ed. 2d 454 (1972); Foremost Ins. Co. v. Richardson, 457 U.S. 668, 102 S. Ct. 2654, 73 L. Ed. 2d 300 (1982). We need not reach the question whether a maritime nexus also must be established when a tort occurs on the high seas. Were there such a requirement, it clearly was met here, for these ships were engaged in maritime commerce, a primary concern of admiralty law.
In East River Steamship Corp., the Court sustained admiralty jurisdiction over a tort claim that arose when injuries were inflicted upon ships' turbines "while the ships were sailing on the high seas." Id.
That analysis would appear to apply to a cruise ship engaged in carrying passengers for hire on the high seas for purposes of entertainment and relaxation. Opulent cruise ships have been part of the world's maritime tradition at least since the launching of Cleopatra's barge. Accordingly, even assuming that a maritime nexus is necessary to establish admiralty jurisdiction over a tort committed on the high seas (a question the Supreme Court left open in East River Steamship Corp. and does not appear to have subsequently addressed), that nexus is established by the role that ocean-going cruise ships play in maritime commerce.
Not surprisingly, the Second Circuit has routinely regarded suits for injuries by cruise ship passengers as falling within admiralty jurisdiction. See, e.g., Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63 (2d Cir. 1988); Rainey v. Paquet Cruises, Inc., 709 *308 F.2d 169 (2d Cir.1983).[2] Consequently, as the cited cases reflect, the Second Circuit traditionally applies the general maritime law to injuries suffered by passengers on cruise ships. Other circuits are in accord. See Carey v. Bahama Cruise Lines, 864 F.2d 201, 206 (1st Cir.1988) (injuries suffered by passenger when using a gangway to move between the vessel and a tender constituted a maritime tort requiring the application of substantive maritime law); Chan v. Society Expeditions, Inc., 39 F.3d 1398, 1402-03 (9th Cir.1994) (injuries suffered when raft ferrying cruise passengers from vessel to coral atoll capsized constituted a maritime tort falling within admiralty jurisdiction and subject to general maritime law).
In Carey, the First Circuit, followed by the Ninth Circuit in Chan, articulated limitations on a perceived maritime nexus requirement to sustain admiralty jurisdiction. Carey says at 864 F.2d 201 n. 4:
[T]his tort has a significant relationship to maritime activity. We believe an injury to a cruise ship passenger caused by a sliding gangway that connected the cruise ship to a tender is a uniquely maritime injury. There should be a uniform maritime rule specifying the respective responsibilities of crew members and passengers in such situations.
In Chan the Ninth Circuit cited that footnote from Carey in concluding that the activity resulting in the injuries in suit "bears a substantial relationship to traditional maritime activity," going on to observe: "An injury to a cruise ship passenger or guest caused by the capsizing of a boat or raft is a uniquely maritime injury."
I do not think that the particular injury-producing activity occurring on board a cruise ship on the high seas must be "uniquely maritime" in order to sustain admiralty jurisdiction. I read East River Steamship Corp., 476 U.S. at 864, as holding that if a tort occurring on the high seas requires an additional maritime nexus at all, that nexus is established by the vessel's being engaged in "maritime commerce," a commerce in which ocean-going cruise ships are unquestionably engaged. The property damage sued on in the admiralty in East River Steamship Corp. resulted from the installation in vessels of turbines which malfunctioned due to design and manufacturing defects. There is nothing uniquely maritime about an improperly designed and manufactured turbine failing; such incidents occur on land as well.
Nor is there anything uniquely maritime about the injury-producing conduct resulting in the Second Circuit cruise ship passenger cases of Monteleone and Rainey. In Monteleone, the passenger fell down a flight of stairs on the vessel; her theory of liability was that she tripped over a protruding screw holding a brass strip to the edge of a step. 838 F.2d at 64. In Rainey, the passenger tripped over a stool while dancing in the ship's discotheque. 709 F.2d at 169. Similarly, in Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69 (3d Cir.1996), upon which plaintiffs at bar rely in a different context, the Third Circuit found a sufficient nexus to "traditional maritime activity" when a passenger slipped and fell onto the floor of the tub in her cabin, thereafter alleging that the tub was not equipped with sufficient antislip abrasive strips. 82 F.3d at 72-73.
One cannot imagine three more prosaic (albeit no doubt painful) injuries than these. There is nothing "uniquely maritime" about tripping on the stairs or over a stool, or falling in a bathtub. Indeed, in Rainey the court of appeals specifically noted that plaintiff's inquiries "did not result from the type of occurrence usually associated with a ship *309 at sea." 709 F.2d at 170. But that distinction is germane only to the standard of care a shipowner owes its passengers, id. at 171; admiralty jurisdiction obtains in either event. What sustains admiralty jurisdiction in these cases, as the Supreme Court noted in East River Steamship Corp., is that the torts occurred on the high seas on board vessels engaged in maritime commerce.
Therefore I conclude that, in the case at bar, plaintiffs' claims, including the claim of plaintiff Charles Friedman for loss of society and consortium, fall within admiralty jurisdiction and are governed by the general maritime law.
IV
The next question is whether the general maritime law furnishes Charles Friedman with the remedy of a claim for loss of society and consortium.
Under American statutory and case law, the availability of particular remedies for maritime torts depends upon a number of factors. Did the defendant's wrong cause death, or only injury? Did the accident occur on the high seas or in the territorial waters of a state? What was the victims' status: a seaman, a longshoreman, or someone else, such as a passenger?
Where death occurs on the high seas, there can be no claim for loss of society under the general maritime law. The Death on the High Seas Act ("DOHSA"), 46 App. U.S.C. §§ 761-768, enacted in 1920, creates a cause of action for wrongful death but limits recovery to pecuniary loss, thereby precluding recovery for nonpecuniary loss of society damages under any other legal theory. See Zicherman v. Korean Air Lines Co., Ltd., 516 U.S. 217, 116 S. Ct. 629, 636, 133 L. Ed. 2d 596 (1996) ("[W]here DOHSA applies, neither state law, not general maritime law, can provide a basis for loss-of-society damages.") (citations and footnote omitted).
The Jones Act, 46 App.U.S.C. § 688, also enacted in 1920, provides an action in negligence for the death or injury of a seaman during the course of his employment, whether the incident occurs on the high seas or in territorial waters. However, as we shall see, that statute also limits its remedies to pecuniary loss.
In Moragne v. States Marine Lines, Inc., 398 U.S. 375, 409, 90 S. Ct. 1772, 26 L. Ed. 2d 339 (1970), a case involving the death of a longshoreman in territorial waters, the Supreme Court overruled its earlier decision in The Harrisburg, 119 U.S. 199, 7 S. Ct. 140, 30 L. Ed. 358 (1886), and held that "an action does lie under general maritime law for death caused by violation of maritime duties." In Moragne the Court created a wrongful death action for the survivors of longshoremen that had not previously existed under federal law, since they are not "seamen" for Jones Act purposes, and it is inherent in the nature of what longshoremen do (loading and unloading ships in port) that accidents do not befall them on the high seas. The Moragne Court ascribed its holding to the desirability of a uniform maritime law:
Our recognition of a right to recover for wrongful death under general maritime law will assure uniform vindication of federal policies, removing the tensions and discrepancies that have resulted from the necessity to accommodate state remedial statutes to exclusively maritime substantive concepts. E.g., Hess v. United States, 361 U.S. 314 [80 S. Ct. 341, 4 L. Ed. 2d 305] (1960); Goett v. Union Carbide Corp., 361 U.S. 340 [80 S. Ct. 357, 4 L. Ed. 2d 341] (1960). Such uniformity not only will further the concerns of [DOHSA and the Jones Act] but also will give effect to the constitutionally based principle that federal admiralty law should be a "system of law coextensive with, and operating uniformly in, the whole country." The Lottawanna, [88 U.S. 558] 21 Wal. 558, 575 [22 L. Ed. 654] (1874).
Id. at 401-02.
Moragne did not discuss the damages recoverable in a wrongful death action arising from the death of a longshoreman in territorial waters. The Court reached that issue in Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 583-591, 94 S. Ct. 806, 39 L. Ed. 2d 9 (1974), which held that the general maritime law wrongful-death remedy declared in Moragne *310 included a claim by the longshoreman's widow for loss of society.
In American Export Lines, Inc. v. Alvez, 446 U.S. 274, 100 S. Ct. 1673, 64 L. Ed. 2d 284 (1980), the Court extended the right of a longshoreman's wife to claim loss of society to cases of injury, reasoning that "[t]o be sure, Gaudet upheld a claim for loss of society in the context of a wrongful-death action. But general federal maritime law is a source of relief for a longshoreman's personal injury, just as it is a source of remedy for wrongful death. Within this single body of judge-formulated law, there is no apparent reason to differentiate between fatal and nonfatal injuries in authorizing the recovery of damages for loss of society." Id. at 281.
In Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S. Ct. 2010, 56 L. Ed. 2d 581 (1978), a wrongful death case arising out of the crash of a helicopter outside Louisiana's territorial waters, the Court held that DOHSA limited the measure of damages to pecuniary loss, so that the survivors could not assert a general maritime claim for loss of society. Higginbotham presaged the Court's later decision in Zicherman, supra.
The Supreme Court returned to seamen in Miles v. Apex Marine Corp., 498 U.S. 19, 111 S. Ct. 317, 112 L. Ed. 2d 275 (1990), which arose out of the death of a seaman in territorial waters. The Court held that neither the Jones Act nor the general maritime law gave the seaman's widow a claim for loss of society. It was argued that Gaudet gave such a remedy to a longshoreman's widow, but the Miles Court brushed Gaudet aside: "The holding of Gaudet applies only in territorial waters, and it applies only to longshoremen." 498 U.S. at 31. In denying a claim for loss of society on the facts presented in Miles, the Court described itself as striving for uniformity in the law:
Our decision also remedies an anomaly we crated in Higginbotham. Respondents in that case warned that the elimination of loss of society damages for wrongful deaths on the high seas would create an unwarranted inconsistency between deaths in territorial waters, where loss of society was available under Gaudet, and deaths on the high seas. We recognized the value of uniformity, but concluded that a concern for consistency could not override the statute. Higginbotham, supra, at 624. Today we restore a uniform rule applicable to all actions for the wrongful death of a seaman, whether under DOHSA, the Jones Act, or general maritime law.
The last Supreme Court case I will consider is Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 116 S. Ct. 619, 133 L. Ed. 2d 578 (1996), upon which I asked counsel to comment in their briefs. In Yamaha a child was killed while jet skiing in territorial waters. Her parents, invoking both admiralty and diversity jurisdiction, asserted claims under state wrongful death and survival statutes. Defendant argued that the federal maritime wrongful death action the Court recognized in Moragne displaced all remedies afforded by state law. The Court's decision in Yamaha paints with a narrow brush; Justice Ginsburg wrote at 116 S.Ct. at 626 n. 8:
We attempt no grand synthesis or reconciliation of our precedent today, but confine our inquiry to the question whether it was Moragne's design to terminate recourse to state remedies when non-seafarers meet death in territorial waters.
The Court allowed state law to govern damages in Yamaha. It recognized that "[p]ermissible state regulation ... must be consistent with federal maritime principles and policies," 116 S.Ct. at 628 n. 13, but noted that "Congress has not prescribed remedies for the wrongful death of nonseafarers in territorial waters," and that DOHSA, at 46 App.U.S.C. § 767, specifically preserves any applicable state wrongful death remedies. Id. at 628. In these circumstances, the Court concluded that "the damages available for the jet ski death of Natalie Calhoun are properly governed by state law." Id. at 629 (footnote omitted).
By now the reader may be wondering what these cases, dealing in large measure with death, seamen, and longshoremen, have to do with the claim of Charles Friedman for loss of society caused by a (fortunately) nonfatal injury to his wife, who was neither a seaman nor a longshoreman. These cases are instructive, I believe, because they demonstrate the Court's continuing concern with *311 uniformity in the maritime law: a concern which, while not constant, in certain peripheral areas, see Haight, Babel Afloat: Some Reflections on Uniformity in Maritime Law, 28 Journal of Maritime Law and Commerce 189, 195-202 (1997), nonetheless furnishes guidance in the sort of substantive issue presented by the case at bar.
A number of circuits have read Miles v. Apex Marine Corp., supra, as endorsing a uniform maritime law which rejects claims for nonpecuniary damages such as loss of services or consortium. In Chan v. Society Expeditions, Inc., 39 F.3d at 1408, where a cruise passenger was injured on the high seas, the Ninth Circuit held that "loss of consortium and loss of society damages are not available in these circumstances under general maritime law," applying by analogy the Supreme Court's intent expressed in Miles to develop a "uniform rule applicable to all actions for the wrongful death of a seaman, whether under DOHSA, the Jones Act, or general maritime law." Id., quoting Miles, 498 U.S. at 32. As noted, Miles rejected claims for loss of society in a seaman's death case; and the Ninth Circuit in Chan rejected claims for loss of society in a passenger's injury case, reasoning that to do otherwise "would effectively reward a tortfeasor for killing, rather than merely injuring his victim." Id. Courts of appeals have also found in Miles authority for denying loss of society claims for seamen injured on the high seas or in territorial waters. See Smith v. Trinidad Corp., 992 F.2d 996 (9th Cir.) (per curiam); Murray v. Anthony J. Bertucci Construction Co., Inc., 958 F.2d 127, 132 (5th Cir.), cert. denied, 506 U.S. 865, 113 S. Ct. 190, 121 L. Ed. 2d 134 (1992) ("The Supreme Court's emphasis in Miles on the importance of uniformity in maritime death cases must apply equally to injury actions.... Therefore, we follow the Supreme Court's lead in Miles and hold that the spouse of an injured seaman has no cause of action for loss of society under the general maritime law.") (footnote omitted).
In Wahlstrom, 4 F.3d at 1091-93, the Second Circuit looked to Miles in holding that nondependant parents could not recover loss of society damages in a general maritime action following their child's death in territorial waters. The Second Circuit expressed its agreement "with the overwhelming majority of the pertinent federal decisions that nondependent parents cannot recover damages for loss of society in a general maritime action," id. at 1092, and added that "[i]t would hardly promote the uniform administration of admiralty actions for this circuit to adopt a rule in conflict with almost every other decided federal case on this issue," a policy of uniformity "emphasized and relied upon by the Court in Miles." Id. at 1092-93 (internal quotation marks and citation omitted).
In In re Amtrak "Sunset Ltd." Train Crash, 121 F.3d 1421 (11th Cir.1997), a tug and tow navigating a river in Alabama collided with and damaged a railroad bridge, with the result that a passenger train derailed and tumbled into the water, causing a number of deaths and injuries. The Eleventh Circuit decided Amtrak after the Supreme Court decided Yamaha, and said of Yamaha:
Thus, it is evident in Yamaha that the Court, while intent on protecting the state interests that were present in that particular case (a product liability action resulting from a recreational boating accident in territorial waters) was not concerned with overruling bedrock admiralty principles recognized in Southern Pacific Company v. Jensen, 244 U.S. 205, 216, 37 S. Ct. 524, 529, 61 L. Ed. 1086 (1917), where the Court held that state law must yield if it "works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations." Indeed, since the birth of the Jensen doctrine in the early part of this century, the goals of uniformity and harmony in admiralty have survived to the present. Yamaha, by emphasizing these principles yet again, has affirmed their continuing vitality.
Id. at 1424-25. The Eleventh Circuit, applying the general maritime law, rejected claims for loss of society and loss of consortium. The court referred to its view, previously expressed in Lollie v. Brown Marine Service, Inc., 995 F.2d 1565, 1565 (11th Cir.1993), that *312 "neither the Jones Act nor general maritime law authorizes recovery for loss of society or consortium in personal injury cases," id. at 1429, and concluded that nothing in Yamaha precluded application of that holding to the claims in Amtrak. It is worth noting that the train passengers in Amtrak were no more seamen than was Shirley Friedman, a passenger on defendant's cruise vessel, so there is no basis for distinguishing the Eleventh Circuit's conclusion regarding the general maritime law.
The considerations that arise from these cases militate against allowing Charles Friedman a state law claim for loss of society and consortium in the case at bar. There are two reasons.
First, such an entitlement would be disruptive of that uniformity in maritime law the Supreme Court regards as desirable. When one contemplates the size of the floating cities that operate as modern cruise vessels, it is easy enough to hypothesize at least one married couple from each of the fifty states of the Union embarking on the same cruise. If the vessel strands or is in collision, and one spouse or the other among all fifty married couples suffers serious injury, the shipowner will face claims for nonpecuniary damages based upon the laws of each of the fifty states. Such a result does unacceptable violence to uniformity in maritime law.
Second, assume that as the result of this hypothetical stranding or collision, members of the ship's crew are also injured. It would be anomalous to grant the families of passengers on board a cruise ship a form of damages which the law denies to the families of seamen on board the same ship at the same time and injured in the same accident, especially when, as noted in Miles, 498 U.S. at 36, "admiralty courts have always shown a special solicitude for the welfare of seamen and their families." The Second Circuit spoke directly to this point in Wahlstrom, 4 F.3d at 1092, as a basis for denying loss of society damages to parents: "In addition, in view of the special regard accorded by admiralty to seamen, it would be anomalous to expand the class of beneficiaries of nonseamen who may recover for the loss of society in the aftermath of the Supreme Court's denial of any such recovery to the beneficiaries of seamen."
These hypothetical cases serve to illustrate the principles which I think govern the case at bar.
But plaintiffs at bar stress that in In re Air Disaster at Lockerbie Scotland, 37 F.3d 804, 829 (2d Cir.1994), cert. denied, 115 S. Ct. 934 (1995), the Second Circuit, after discussing DOSHA and the Jones Act, went on to say: "General maritime law cases that are not bound by statutory restriction, in contrast, allow recovery for loss of society." But when these words are examined in context, there is less to them than meets the eye.
The Lockerbie case arose out of the Pan American Flight 103 terrorist bombing, the aircraft having fallen to earth in Lockerbie, Scotland. In the case reported at 37 F.3d 804, the Second Circuit concluded that damages in a Warsaw Convention aircraft case were governed by federal common law principles, and that the compensability of damages for loss of society and companionship was to be determined "by an examination of maritime law." Id. at 828. The Second Circuit then applied that principle in Zicherman v. Korean Air Lines Co., Ltd., 43 F.3d 18 (2d Cir.1994), affirmed in part and reversed in part, 116 S. Ct. 629 (1996), in which the aircraft crashed in the Sea of Japan.
The Supreme Court in Zicherman held that DOHSA governed that case and precluded nonpecuniary damages such as loss of society. That led the Second Circuit to reconsider the view it had expressed in Lockerbie; and, in Pescatore v. Pan American World Airways, Inc., 97 F.3d 1, 9 (2d Cir. 1996), another case arising out of the Lockerbie crash, the Second Circuit concluded that the Supreme Court's decision in Zicherman "embodies an intervening change in controlling law because it requires application of ordinary choice of law principles to determine the proper substantive law governing damages, and because it expressly rejects our prior holding that the Warsaw Convention requires creation of a uniform rule governing damages." In those new circumstances, the Second Circuit looked to the substantive law of Ohio, the state of the decedent's and the plaintiff's domicile, which *313 allowed a claim for loss of society. Id. at 12-15.
Thus the Second Circuit's words in Lockerbie upon which plaintiff's at bar rely were spoken in the context of an aviation case, not a maritime case; and the Supreme Court explicitly disproved the result the Second Circuit deduced from that principle of maritime law. Accordingly these words lose some of their lustre. Of course, the Second Circuit said what it said; but its declaration falls well short of a holding that the general maritime law would provide a remedy for loss of society to the spouse of a cruise ship passenger injured on the high seas.
Attaching such a meaning to the Second Circuit's words in Lockerbie is particularly problematical when one considers the only cases the court of appeals cited as authority for the proposition. Those cases are American Export Lines, Inc. v. Alvez, supra, and Sea Land Services, Inc. v. Gaudet, supra. See 37 F.3d at 829. As has been noted, both cases involved the families of longshoremen; and the Supreme Court made it crystal clear in Miles that their holdings cannot be extended beyond that particular group of individuals.
In summary, I conclude that the general maritime law, which governs the case at bar, does not provide plaintiff Charles Friedman with a cause of action for loss of society and consortium caused by an injury occurring on the high seas.[3]
V
As an alternative basis for decision, I reject Charles Friedman's claim because he cannot show that he was dependent upon Shirley Friedman, as the law defines that phrase.
I have noted the Second Circuit's holding in Wahlstrom, 4 F.3d at 1092, that "nondependent parents cannot recover damages for loss of society in a general maritime action." The Second Circuit, in adhering to that view, rejected the argument "that an essential pecuniary standard such as dependency should not provide the dividing line on this issue, given the nature of loss-of-society-damages." Id. In its subsequent opinion in Zicherman, 43 F.3d at 22, the Second Circuit cited Wahlstrom for the proposition that "[u]nder federal maritime law, the rule is well-established that only dependents may recover damages for loss of decedent's society," although the court of appeals acknowledged that "[n]o doubt this rule denies recovery to some deserving parties; nondependent survivors may feel the loss of a love one as keenly as dependent survivors."
As noted, the Supreme Court in Zicherman held that DOHSA furnished the governing law, thereby precluding recovery for loss of society. The Court added: "We therefore need not reach the question whether, under general maritime law, dependency is a prerequisite for loss-of-society damages." 116 S.Ct. at 637. But it is clear enough that that prerequisite exists under current Second Circuit authority.
The existence vel non of dependency turns upon pragmatic and economic considerations. "The test of dependency is the existence of a legal or voluntarily created status where the contributions are made for the purpose and have the result of maintaining or helping to maintain the dependent in [her] customary standard of living." Zicherman, 43 F.3d at 22 (internal quotation marks and citation omitted).
*314 The record makes it entirely clear that Charles Friedman has not shown dependency upon his wife in this economic sense of the word. Shirley Friedman had been retired since 1988. There is no showing that her husband was otherwise dependent upon her to maintain their standard of living.
While Wahlstrom and the cases its cites at 4 F.3d at 1091-92 deal with the claims of nondependent parents, I can perceive no principled distinction between nondependent parents and nondependent spouses, given the economic and pragmatic test of dependency articulated by the Second Circuit in Zicherman. Surely it is not a ground for distinction to say that the "society" of a spouse means more to one than the "society" of a child. It is not unknown, in the affairs of the human heart, that love for a child may last longer than love for a spouse.
For the foregoing reasons, the defendant's motion for partial summary judgment dismissing the claim of Charles Friedman for loss of society and consortium is granted.
It is SO ORDERED.
NOTES
[1] Plaintiff Charles Friedman uses the words "society" and "consortium" synonymously, which in the marital context is appropriate. "The term `society' embraces a broad range of mutual benefits each family member receives from the others' continued existence, including love, affection, care, attention, companionship, comfort, and protection." Sea-Land Services. Inc. v. Gaudet, 414 U.S. 573, 585, 94 S. Ct. 806, 39 L. Ed. 2d 9 (1974). The legal concept of "loss of consortium, which incorporates loss of society," permits a wife to recover damages under that heading resulting "from personal injury to her husband," or in this case, recovery by a husband for loss of consortium with his wife. Air Disaster at Lockerbie, Scotland, 37 F.3d 804, 829-30 (2d Cir.1994).
[2] In Monteleone, the Second Circuit noted that the district court "exercis[ed] jurisdiction in admiralty" under 46 App.U.S.C. § 740. 838 F.2d at 64. That statute extends admiralty jurisdiction to cases of damage or injury "caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land." The applicability of that statute to the accident is not clear, since the plaintiff fell down a flight of stairs on board defendant's cruise ship, and the district judge's opinion following trial, reported at 664 F. Supp. 744 (S.D.N.Y.1987), does not explain his invocation of this admiralty jurisdiction extension statute. In Rainey, the Second Circuit's opinion does not recite the jurisdictional predicate, and the district court's opinion is not reported, but the district court conducted a bench trial, which is consistent with admiralty practice.
[3] Plaintiffs cite three district court cases in other circuits upholding claims for loss of society or consortium in cases where death or injury occurred in territorial waters. Powers v. Bayliner Marine Corp., 855 F. Supp. 199 (W.D.Mich.1994) (death); Schumacher v. Cooper, 850 F. Supp. 438 (D.S.C.1994) (injury); Emery v. Rock Island Boatworks, Inc., 847 F. Supp. 114 (C.D.Ill.1994) (injury). These cases are distinguishable from the case at bar, where the injury occurred on the high seas, thereby eliminating any policy reason for applying the law of a particular state. Moreover, these cases are inconsistent with caselaw in this circuit delineating the breadth of the Supreme Court's decision in Miles. Powers acknowledges, 855 F.Supp. at 201, that its result is contrary to that reached in Shield v. Bayliner Marine Corp., 822 F. Supp. 81, 83-84 (D.Conn. 1993) Emery, 847 F.Supp. at 118, criticizes Shield and the District of Connecticut's earlier decision in Wahlstrom, 800 F. Supp. 1061 (D.Conn.1992), on the ground that they "read the Supreme Court's holdings in Miles and Higginbotham too broadly," a criticism of no moment in this district, since the Second Circuit affirmed Wahlstrom. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625568/ | 689 S.W.2d 214 (1984)
The STATE of Texas, ex rel. Tim CURRY, Criminal District Attorney, Tarrant County, Applicant,
v.
Honorable L. Clifford DAVIS, Judge, Criminal District Court No. Two, Tarrant County, Respondent.
No. 69252.
Court of Criminal Appeals of Texas, En Banc.
July 25, 1984.
Tim Curry, Dist. Atty., and C. Chris Marshall, Asst. Dist. Atty., for applicant.
Jim Voller, Austin, for respondent.
Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION
PER CURIAM.
July 20, 1983 this Court rendered an opinion in two causes brought up from the Fort Worth Court of Appeals by an appellant; we affirmed the judgments of that court which had affirmed two judgments of conviction in the trial court. Garrett v. State, 658 S.W.2d 592 (Tex.Cr.App.1983), affirming Garrett v. State, 639 S.W.2d 18 (Tex.App.Fort Worth 1982). Motions for rehearing were denied, and mandates of this Court were issued November 4, 1983 commanding the trial court "to observe the order of our said COURT OF CRIMINAL APPEALS in this behalf and in all things to have it duly recognized, obeyed and executed."
In the trial court the two causes are numbered 15,864 and 15,866. Mandate in each cause was received by the clerk of the trial court November 10, 1983. Garrett then filed with the clerk of this Court a motion to stay or recall mandate, praying as well for an order allowing him to remain at large on security of his appeal bond or, alternatively, of new bail to be fixed by the officer having custody of him. December *215 6, 1983 counsel for all parties were notified that the motion had been in all things denied.
Garrett also filed in the trial court an application to remain at large on his appeal bond during determination of a prospective petition for writ of certiorari. Not only did the trial court grant that relief on or about December 6, 1983, but also there followed a flurry of motions, purported nunc pro tunc orders undertaking to "correct" sentences, notices of appeal and fresh appeal bonds and other related litigation. Soon the criminal district attorney sought and we granted leave to file an application for writs of mandamus and prohibition. We have decided that relief must be granted.
Given the statutory scheme in matters of mandate after final judgment rendered by an appellate court and of ministerial duties flowing from issuance and receipt of a mandate, except for ministerial matters, neither the judge nor the trial court had jurisdiction, power or authority to take any action other than in obedience to the mandates of this Court. State ex rel. Vance v. Hatten, 508 S.W.2d 625, 628 (Tex.Cr.App.1974) and State ex rel. Wilson v. Briggs, 171 Tex. Crim. 479, 351 S.W.2d 892, 894 (1961).
When the mandate of this Court has been made out by our clerk and mailed to the clerk of the trial court, Article 44.26, V.A.C.C.P., the latter is charged to file it with the papers of the cause and note it upon the docket, Article 44.27, id. Then the clerk of the trial court is mandated by statute to do several things. The most important is "forthwith [to] issue a capias for the arrest of the defendant for the execution of the sentence of the court, which shall ... command the sheriff to arrest and take into his custody the defendant and place him in jail and therein keep him until delivered to the proper authorities, as directed by said sentence." Article 44.05, id.; and, similarly, if defendant has been released on bail pending disposition of appeal, the clerk of the trial court shall issue a commitment against the defendant, Article 42.09, § 2, id. The sheriff, in the case of a capias, shall execute it as directed and notify the clerk of the trial court and of the appellate court that issued its mandate, Article 44.05, supra; the officer who executes a commitment shall endorse thereon the date defendant is taken into custody for the sentence thus begins to run, Article 42.09, § 2, supra.
Article 44.06, id., provides that upon execution and return of a capias "no bail shall be taken ..." Although such a prohibition is not expressly stated with reference to a commitment, since both serve essentially the same function, see Ex parte Priest, 162 Tex. Crim. 398, 286 S.W.2d 164, cert. denied 351 U.S. 910, 76 S. Ct. 696, 100 L. Ed. 1444 (1956), we take it that the Legislature did not intend to allow release on bail should a clerk of the trial court opt to issue a commitment rather than a capias. Article 44.04, V.A.C.C.P., clearly contemplates that bail may be fixed after conviction in a trial court and that security given by an appellant is effective pending final determination of the appeal, as does Article 17.09, id. However, § (f) also insists that neither appellant nor sureties are released from liability until he is "placed in the custody of the sheriff," without regard to the title of the paper executed to put him there. We hold that bail may not be taken from one who is subject to being placed in custody upon execution of a capias or commitment issued in a cause pursuant to a mandate of affirmance from this Court.
Issuing and executing a capias or commitment after mandate are purely ministerial acts accomplished by officers of a trial court "only to see that the judgment of this court [is] carried out," State ex rel. Vance v. Hatten, 508 S.W.2d 625 (Tex.Cr. App.1974); see also Houlihan v. State, 579 S.W.2d 213, 217 (Tex.Cr.App.1979).
We are informed by the record that upon receipt of our mandate the clerk of the trial court issued a capias after mandate in each cause; January 10, 1984 a deputy sheriff *216 executed them while Garrett was in the trial court attending a hearing convened by respondent judge in order to fix an amount bond on appeal by Garrett from nunc pro tunc orders purporting to correct sentences in Cause No. 15,864 and Cause No. 15,866, respectively. However, detention of Garrett was momentary at best, for he was immediately released on appeal bond approved by the trial judge and filed among the papers of each cause. Thus, as in State ex rel. Wilson v. Briggs, supra:
"In this manner the Respondent has done... indirectly what he has no authority to do directly; that is, to stay the effectiveness of the decisions and mandates of this Court."
Id., at 895.
We conclude that it is necessary in order to enforce the jurisdiction of this Court that Respondent be ordered and directed to cause the clerk of his court to issue, and an appropriate peace officer to execute a capias or commitment against Curtis Garrett by arresting and taking him into custody and placing him in jail and therein keep him until delivered to proper authorities, as directed by the sentences imposed in these causes. State ex rel. Vance v. Hatten, supra, at 629.
However, accepting at full value statements made by Respondent during the January 10 hearing that this "matter needs to be resolved and I am trying to facilitate the resolution of it," we assume that he will immediately effectuate that which this Court has ordered and directed. Writ of mandamus will issue only if he refuses to do so.
All other relief sought by applicant is denied, but without prejudice to a fresh application seeking all or part of such relief as may be deemed necessary to enforce fully the mandates of this Court issued by our clerk pursuant to the opinion and judgments in Garrett v. State, supra. A motion for rehearing will not be entertained.
It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625553/ | 689 S.W.2d 123 (1985)
STATE of Missouri, Respondent,
v.
Melvin PERRY, Appellant.
No. WD 35922.
Missouri Court of Appeals, Western District.
April 2, 1985.
James W. Fletcher, Public Defender, Kent Gipson, Asst. Public Defender, Kansas City, for appellant.
John Ashcroft, Atty. Gen., Leah A. Murray, Asst. Atty. Gen., Jefferson City, for respondent.
Before CLARK, P.J., and SOMERVILLE and KENNEDY, JJ.
SOMERVILLE, Judge.
Defendant, charged with robbery in the first degree (§ 569.020, RSMo 1978), was found guilty by a jury of robbery in the second degree (§ 569.030, RSMo 1978) and his punishment was assessed at fifteen (15) years imprisonment. Following an unavailing motion for new trial, judgment was *124 entered and sentence pronounced accordingly.
As the sufficiency of the evidence has not been questioned, a brief disclosure of certain basic facts should presently suffice. At approximately 1:30 a.m. on December 17, 1982, the victim of the robbery, a prostitute, was plying her trade at the intersection of Linwood and Main in Kansas City, Missouri. Defendant, riding as a passenger in a "maroon Monte Carlo" driven by an unidentified third person, arrived at the scene. Defendant got out of the vehicle, approached the victim, and sought to engage her services. The victim rebuffed defendant because she didn't "date" blacks. Thereupon, defendant, brandishing a "handgun" or "pistol", robbed the victim of approximately $80.00 in United States currency which she had upon her person. A policeman in the immediate vicinity was alerted by two of the victim's "friends". The policeman drew his weapon and ordered defendant to "halt". Defendant, notwithstanding, jumped back into the maroon Monte Carlo and a high speed chase ensued. The vehicle in which defendant was riding finally came to a stop at 39th and McGee when it struck a "traffic pole". The unidentified third person who was driving the maroon Monte Carlo jumped out and escaped on foot. Defendant, who had been drinking heavily, was apprehended as he sat slumped over in the right front seat of the vehicle. Additional evidence will be forthcoming when and where deemed necessary for ultimate dispositional purposes.
Four points of error are relied on by defendant on appeal, three relating to admissibility or inadmissibility of certain evidence, and one relating to prosecutorial closing argument. Of the four points, one in particular is dispositive of this appeal admission of a loaded 20-gauge shotgun at the request of the state over vehement objections by defendant and requests for a mistrial that the weapon was irrelevant and highly prejudicial. Failure to explicitly mention or give detailed consideration to the remaining three points relied on by defendant is in no way indicative of their merit or lack of merit. Matters associated with the remaining three points may not occur on retrial as the defendant's brief, and the arguments and authorities cited therein, alert the state to their potential danger in the event they are repeated.
Certain additional facts come to the forefront in addressing and ruling defendant's contention that the trial court erred in admitting the loaded 20-gauge shotgun into evidence. According to the evidence presented by the state, defendant perpetrated the robbery in question by means of a "handgun" or "pistol". Both the victim and the police officer who arrived at the scene positively testified that defendant was brandishing a "handgun" or "pistol" at the time. Defendant, although admitting that he confronted the victim about engaging her services, denied that he robbed her or that he had or owned a "handgun" or "pistol". Defendant also separately accounted for some $85.00 in currency he had on his person when arrested. The loaded 20-gauge shotgun first crept into evidence when a police officer testified on behalf of the state that it was found "wrapped in a blanket" in the back seat of the maroon Monte Carlo after defendant was apprehended at 39th and McGee at the conclusion of the high speed chase. The evidence stands uncontradicted that defendant's mother, rather than defendant, was the owner of the maroon Monte Carlo, and that defendant had temporarily borrowed the vehicle the night in question because his own car "broke down". There was no evidence whatsoever as to who owned the loaded 20-gauge shotgun. More particularly, there was no evidence whatsoever that defendant was even aware of the presence of the loaded 20-gauge shotgun in the back seat of the maroon Monte Carlo. It is made clear by the record that the state's witnesses who testified that defendant perpetrated the robbery by means of a "handgun" or "pistol" were aware of the distinction between such weapons and a shotgun, and neither contended nor implied that defendant perpetrated the robbery by means of a shotgun. There is not so much as a scintilla *125 of evidence that defendant and the unidentified third person who was driving the maroon Monte Carlo were on a criminal spree of any kind before or after the alleged robbery in question. No "handgun" or "pistol" was ever found or retrieved by police authorities on or from defendant's person or in or from the maroon Monte Carlo, or elsewhere, although the vehicle was kept in sight by the pursuing officer during the high speed chase except for several momentary occasions when it went over hills.
The courts of this state, with notable consistency, have recognized that weapons unconnected with either the accused or the offense for which he is standing trial lack any probative value and their admission into evidence is inherently prejudicial and constitutes reversible error. As observed in State v. Charles, 572 S.W.2d 193, 198 (Mo.App.1978), "[l]ethal weapons completely unrelated to and unconnected with the criminal offense for which an accused is standing trial have a ring of prejudice seldom attached to other demonstrative evidence...." The consistency with which the admission of such demonstrative evidence has been branded as reversible error is borne out by the following cases: State v. Holbert, 416 S.W.2d 129 (Mo.1967); State v. Wynne, 353 Mo. 276, 182 S.W.2d 294 (1944); State v. Moore, 645 S.W.2d 109 (Mo.App.1982); State v. Fristoe, 620 S.W.2d 421 (Mo.App.1981); State v. Williams, 543 S.W.2d 563 (Mo.App.1976); State v. Davis, 530 S.W.2d 709 (Mo.App. 1975); and State v. Merritt, 460 S.W.2d 591 (Mo.1970).
The state attempts to avoid the consequences of the above-cited cases by indulging in a bifurcated argument the shotgun was admissible under one or the other of several recognized exceptions or, even though inadmissible, its admission constituted harmless error.
First the state argues that the controversial shotgun was admissible to show "a common scheme ..., plan [or] availability of the means to commit the crime in question." In support thereof, the state places great emphasis on the holding in State v. Evans, 237 S.W.2d 149, 151 (Mo.1951), to the effect that "[a]rticles showing motive, or malice, or intent, or knowledge or preparation, may be received in evidence if shown to be connected with the crime or the accused", (emphasis added) The fallacy of defendant's reliance on the foregoing is self-evident the shotgun was never connected with either the crime or the accused. The acid test for determining whether the shotgun falls within the quoted exception is whether it had any logical relevance to the offense for which defendant stood trial. It is patent that it did not as it was neither connected with the offense nor with defendant.
The state also argues that the shotgun was admissible under the "res gestae" doctrine. Inclusion of demonstrative evidence within the purview of the res gestae doctrine appears to strain legal phraseology. The state apparently seeks to ease the strain by equating it with "acts" or "events". As put in State v. Winston, 657 S.W.2d 399, 401 (Mo.App.1983), "[a]cts or events are a part of the res gestae if they occur in the same transaction as the crime, are substantially contemporaneous with the commission of the crime and are part of one continuous transaction in the accomplishment of a common design." See also State v. Nylon, 563 S.W.2d 540, 542 (Mo. App.1978). The res gestae argument advanced by the state is, pragmatically, indistinguishable from its first argument. Once again, a logical relevance to the offense for which defendant stood trial is the acid test for determining whether the shotgun was admitted under the state's strained version of the res gestae doctrine. It cannot be said that the loaded 20-gauge shotgun in the back seat of the maroon Monte Carlo, the presence of which was unknown by and unconnected with defendant, was in any way associated with the purported robbery which occurred at Linwood and Main or part of a continuous transaction in the accomplishment of a common design. Based on the record in this case, to argue otherwise one would have to resort to sheer *126 speculation, conjecture and surmise, a universally condemned practice.
The state alternatively contends that even if the shotgun was improperly admitted into evidence, doing so constituted harmless error. Ostensibly in support thereof, the state quotes as follows from State v. Lue, 598 S.W.2d 133, 137 (Mo. banc 1980): "[t]he mere mention of another offense is not per se prejudicial...." Unfortunately, the shotgun, which is the eye of the controversy in this case, was prominently displayed in the presence of the jury from the time of its admission (which occurred prior to the time the state called its final two witnesses) and was referred to by the state at least three times during closing argument. At this juncture, it is appropriate to note that the applicable standard for determining whether error in the admission of evidence is harmless may be in a state of flux. Under a certain line of authority "error in the admission of evidence should not be declared harmless unless it is so without question." State v. Degraffenreid, 477 S.W.2d 57, 64 (Mo. banc 1972). See also: State v. Wright, 582 S.W.2d 275, 277 (Mo. banc 1979); and State v. Mayes, 654 S.W.2d 926, 936 (Mo.App.1983). However, the majority opinion in State v. Miller, 650 S.W.2d 619, 621 (Mo. banc 1983), without expressly overruling State v. Degraffenreid, supra, holds that "[t]he more understandable and prevailing standard is that error can be declared harmless only if we are `able to declare a belief that it was harmless beyond a reasonable doubt.'" Admission of the shotgun into evidence by virtue of its inherent prejudicial nature and lack of relevancy, coupled with the state's advert reference to it before the jury to obtain defendant's conviction, dispel any credence to the state's argument that any error associated therewith was harmless when tested by either standard.
Without being hyperbolic, admission of the shotgun into evidence was totally unjustified and the dangerous tendency and misleading effect of such evidence cannot be minimized.
Unfortunately, prosecutorial "overkill" is a far too common occurrence. Perforce, when the state, as here, insists on walking the precipice of reversible error, it must be prepared to suffer the consequences of stepping over the edge reversal and remand for a new trial.
Reversed and remanded for a new trial.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625897/ | 25 So. 3d 1271 (2010)
J.B.D. BROTHER'S and Masonry, Inc. and Florida Citrus Business & Industry/USIS, Appellants,
v.
Angel MIRANDA, Appellee.
No. 1D09-3402.
District Court of Appeal of Florida, First District.
January 25, 2010.
Neal L. Ganon and Marissa M. Hoffman of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., West Palm Beach, for Appellants.
Kenneth B. Schwartz, West Palm Beach, for Appellee.
WETHERELL, J.
The employer/carrier (E/C) raises three issues in this workers' compensation appeal: 1) whether the Judge of Compensation Claims (JCC) erred in directing the E/C to pay a bill for an MRI performed on Claimant; 2) whether the JCC's award of temporary total disability benefits was supported by competent substantial evidence; and 3) whether the JCC erred in determining that Claimant had wages for purposes of calculating Claimant's average weekly wage (AWW). We affirm the second issue without discussion. We affirm the third issue based upon our decision in Rene Stone Work Corp. v. Gonzalez, 25 So. 3d 1272 (Fla. 1st DCA 2010), and we reverse the first issue for the reasons that follow.
Claimant is an illegal alien from Mexico who has lived in the United States since 2000. Claimant began working as a fork-lift driver and laborer for the employer in June 2008. Claimant was injured on July 23, 2008, when he fell from a scaffold on the employer's job site in Miami.
The employer did not immediately report the accident to its workers' compensation *1272 insurance carrier. Instead, the employer agreed to pay for Claimant's medical care and his lost time from work until he recuperated. These payments, like the wages that the employer paid Claimant, were made "under the table" in cash.
The employer stopped making the payments in mid-September 2008, and Claimant thereafter retained an attorney and filed a petition for benefits (PFB). At that point, the employer reported the accident to its workers' compensation insurance carrier. The accident and injury were accepted as compensable, but the carrier denied indemnity benefits because there was no record of any wages having been reported to the Internal Revenue Service (IRS) for Claimant.
In April 2009, Claimant, with the assistance of his attorney, filed several forms with the IRS, including a Form 1040 on which he reported his income for 2008 to be $8,256 and a Form W-7 entitled "Application for IRS Individual Taxpayer Identification Number." The parties stipulated that the income Claimant reported to the IRS equates to an AWW of $480, but the E/C argued that because Claimant did not file the correct forms or complete information with the IRS, he did not properly report his income and therefore he failed to establish his wages for purposes of calculating an AWW. The JCC rejected this argument, as do we based upon the analysis in Rene Stone Work Corp., supra.
The PFB sought authorization and payment for an MRI that had been recommended by a physician who saw Claimant prior to the filing of the PFB. The E/C authorized the procedure, and it was performed on November 3, 2008. There was no evidence that Claimant was billed for the procedure, but because the E/C's records did not reflect that the bill had been paid, the JCC ordered the E/C to pay for the MRI "per the fee schedule."
We agree with the E/C that the JCC lacked jurisdiction to order payment of the MRI bill. Disputes concerning an E/C's failure to pay medical bills submitted to it by an authorized physician are subject to the exclusive jurisdiction of the Agency for Health Care Administration, not the JCC. See § 440.13(1)(r) and (11)(c), Fla. Stat. (2008); Orange County v. Willis, 996 So. 2d 870, 871 (Fla. 1st DCA 2008); Avalon Center v. Hardaway, 967 So. 2d 268, 271-73 (Fla. 1st DCA 2007). Moreover, Claimant has no standing to seek payment of a bill on behalf of a health care provider because he is not responsible for paying the bill and the provider's sole recourse is to seek payment from the E/C. See Avalon Center, 967 So.2d at 274 (quoting sections 440.13(3)(g) and (14)(a)).
For these reasons, we reverse that portion of the JCC's order directing the E/C to pay the MRI bill. In all other respects, the JCC's order is affirmed.
AFFIRMED in part; REVERSED in part.
LEWIS and THOMAS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626431/ | 17 Mich. App. 235 (1969)
169 N.W.2d 364
WENDEL
v.
SWANBERG
Docket Nos. 5,263 and 6,156.
Michigan Court of Appeals.
Decided April 23, 1969.
Leave to appeal granted December 24, 1969.
*236 Donald G. Jennings, for plaintiffs.
John E. Hart, for defendant Helen Swanberg.
David L. Bailey, for garnishee defendant Travelers Indemnity Co.
Amicus Curiae: Boyer Insurance Agency (by Charles H. Menmuir).
BEFORE: QUINN, P.J., and HOLBROOK and T.M. BURNS, JJ.
Leave to appeal granted December 24, 1969. See 383 Mich. 755.
QUINN, P.J.
May 8, 1967, plaintiffs recovered $25,000 from defendant by default judgment. Her motion to set aside the default judgment was denied February 26, 1968 and defendant appealed March 13, 1968. March 21, 1968, plaintiffs recovered a judgment for $25,000 against garnishee defendant, the insurer of defendant's premises. Garnishee defendant moved to vacate the judgment against it and for a new trial. From denial of this motion, garnishee *237 defendant appeals, and the appeals were consolidated in this Court.
Elizabeth M. Wendel and defendant had known each other for over 20 years and were close friends. February 15, 1966, Elizabeth visited defendant's home. About 7:30 p.m., Elizabeth departed and she fell before she reached her automobile. A fractured hip resulted from the fall and Elizabeth was hospitalized. Some time after the fall, defendant telephoned her insurance agent to inquire whether her insurance covered anyone who fell on her premises, and she was advised that it did. When Elizabeth was released from the hospital, she convalesced about 2 months at defendant's home.
During the latter period, defendant reported the fall of Elizabeth to her insurance agent, and an investigator interviewed defendant and Elizabeth at defendant's home. Garnishee defendant denied liability except for medical expense of $500, which was offered to and declined by plaintiffs. Defendant indicated to Elizabeth that defendant's insurance coverage was larger, and Elizabeth stated she was going to sue the insurance company. Plaintiffs' attorney requested to see defendant's insurance policy and he was permitted to do so. The policy had a $25,000 limit of personal liability for bodily injury.
About Christmastime of 1966, Elizabeth suffered another fall in her home. This time she broke the same leg but not at the hip. She was again hospitalized and she again spent some of her convalescence in defendant's home.
Plaintiffs filed this action against defendant February 3, 1967 for damages in the amount of $25,000. Defendant was personally served February 7, 1967 and her default for failure to plead or otherwise defend was entered April 20, 1967. The *238 default judgment of May 8, 1967 awarded Elizabeth M. Wendel $15,000 damages and Richard O. Wendel $10,000.
After defendant received the summons and complaint, she did not consult an attorney. She stated she assumed her insurance company would look after it. Defendant mailed the summons and complaint to her insurance agency some time before June, 1967, according to her, but the papers were not received by the agency until November, 1967, according to the agent. The suit papers did not reach the garnishee defendant until December 1, 1967. Defendant's first knowledge of the judgment against her arose when her bank account was garnished late in November 1967. February 16, 1968, defendant filed her motion to vacate the default judgment. February 19, 1968, plaintiffs filed a motion for summary judgment against the garnishee defendant. Both motions were heard February 26, 1968.
Pursuant to GCR 1963, 528.3, defendant sought relief from the default judgment by her motion of February 16, 1968. The rule provides that relief may be granted for any of 5 specific reasons and for (6) "any other reason justifying relief from the operation of the judgment". Motion for relief shall be made within a reasonable time. The grant or denial of relief is discretionary.
Two questions are presented under the rule, namely: Was relief sought within a reasonable time and was denial of relief an abuse of discretion?
The record before us is strongly suggestive of the fact that defendant was desirous of assisting her friend, the injured Elizabeth M. Wendel, and that this desire continued to the point at which defendant realized she might become financially involved in that assistance. Within 3 months thereafter, defendant sought relief. We recognize the factual *239 distinction between this case and Lafferty v. District of Columbia (1960), 107 App DC 318 (277 F2d 348), but some of the language in that decision aptly states our reason for holding that defendant here acted within a reasonable time. The Federal court stated at page 351,
"No one has been adversely affected by the delay except appellant himself. Nothing to impair the ascertainment of any material fact can be attributed to this passage of time. We think it is far more reasonable in the circumstances of this case to correct this matter now than to hold that the delay in initiating proceedings to do so bars relief to appellant."
In its opinion filed March 29, 1968, the trial court stated:
"If the garnishee defendant or the principal defendant, either one, would have asked to set aside the default judgment prior to September 8th, it would have been automatically set aside by this court. * * * The court denied the principal defendant's motion to set aside the default, because of the delay of over 1 year after personal service was made and over 9 months after the date of the entry of the judgment."
These statements indicate 2 things. The trial court was satisfied defendant had shown good cause for setting aside the default judgment but she had waited too long in requesting relief. We agree that defendant had and has shown good cause for setting aside the default judgment. We have held she sought this relief within a reasonable time, and it was an abuse of discretion by the trial court not to grant relief.
We note the factual distinction between this case and McDonough v. General Motors Corporation *240 (1967), 6 Mich. App. 239, but we believe the language in that opinion aptly expresses the view of this Court on application of the rule involved. We there said, p 246:
"The thrust of GCR 1963, 528.3(6), is clearly to free courts from the fetters of a set of specifically delineated bases for relieving from default whenever manifest injustice or an unconscionable result flows from the default."
The trial court is reversed and the default judgment against defendant is set aside. This necessitates vacating the judgment against the garnishee defendant.
Reversed and remanded for trial. No costs are awarded.
All concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626466/ | 17 Mich. App. 85 (1969)
169 N.W.2d 153
PEOPLE
v.
WALKER
Docket No. 5,258.
Michigan Court of Appeals.
Decided April 22, 1969.
Rehearing denied May 27, 1969.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Thomas P. Smith, Assistant Prosecuting Attorney, for the people.
Harold M. Ryan, for defendant on appeal.
BEFORE: LESINSKI, C.J., and J.H. GILLIS and W.J. BEER,[*] JJ.
*86 PER CURIAM:
Defendant was sentenced to state prison as a violator of the terms of his probation. On appeal, he contends he had neither notice of the charges nor time to prepare his defense before the hearing. However, the record is to the contrary. Defendant even acknowledged in writing receipt of the warrant containing charges of probation violation. That such receipt was on file in the probation department records instead of the court file is unimportant.
Defendant also claims he did not have a full hearing with the benefit of counsel. Again, the record refutes this assertion. We have examined the record and are convinced that defendant had counsel, had time to prepare, and had a full hearing. The judge conducting the hearing concluded that defendant was a probation violator and we cannot say that the finding was erroneous.
Lastly, defendant claims a right to a jury trial at the probation hearing. No such right is conferred on an alleged probation violator under the appropriate Michigan statute (CL 1948, § 771.4 [Stat Ann 1954 Rev § 28.1134]):
"Sec. 4. It is the intent of the legislature that the granting of probation to one convicted shall be a matter of grace conferring no vested right to its continuance, if, during the period of probation it shall appear to the satisfaction of the sentencing court that the probationer is likely again to engage in an offensive or criminal course of conduct, or that the public good requires revocation or termination of probation previously granted. All probation orders, therefore, shall be revocable or terminable in any manner which the court which imposed probation shall deem applicable, either for any violation, or attempted violation of any condition of probation, or for any other type of antisocial conduct or action on the part of the probationer which shall satisfy *87 such court that revocation is proper in the public interest. Hearings on such revocation shall be summary and informal and not subject to the rules of evidence or of pleadings applicable in criminal trials. The court may, in its probation order or by general rule, provide for the apprehension, detention and confinement of any probationer accused of violation of any of the conditions of probation or of conduct inconsistent with the public good. The method of hearing and presentation of charges accorded shall lie entirely within the discretion of the court which granted probation: Provided however, That the probationer shall be entitled to a written copy of the charges against him which constitute the claim that he violated his probation, and shall be entitled to a hearing thereon. Said court is hereby empowered to make such investigation and such disposition of probationer thereafter as such court may determine shall best serve the interests of the public. In case such probation order is terminated or revoked the court may proceed to sentence such probationer in the same manner and to the same penalty as it might have done if such probation order had never been made."
We find no error in the proceedings revoking the probation of defendant. Affirmed.
NOTES
[*] Circuit Judge, sitting on the Court of Appeals by assignment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2456662/ | 403 S.W.2d 133 (1966)
Ex parte Donald JESTER.
No. 39714.
Court of Criminal Appeals of Texas.
May 25, 1966.
*134 S. B. French, Austin, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
OPINION
MORRISON, Judge.
This is an appeal from the order of the 147th Judicial District Court of Travis County denying appellant's motion for a reduction of bond. The record reflects that prior to indictment, appellant had been released on bond in the sum of $5,000 and that after the return of an indictment for robbery, bond was set at $25,000. At the hearing on the motion for reduction, it was shown that appellant had a record of 18 non-felony convictions with the Austin Police Department, that at the time of the hearing appellant had pending against him a charge of the possession of narcotics as well as a Federal charge of concealing stolen money orders. The testimony of appellant could be fairly construed as admitting that he had taken some narcotics prior to commission of the offense for which he is presently charged, and that if released on bond, appellant intended to go into another state to seek employment. It was further shown that the evidence at the examining trial might well have supported an indictment for robbery with firearms, but in order to utilize a prior conviction against appellant's co-indictee, a joint indictment was returned against the two charging them with robbery by assault.
We have concluded that the case of Ex parte Korn v. State, Tex.Cr.App., 400 S.W.2d 564, upon which appellant relies is not here controlling and that the judge did not abuse his discretion in refusing to lower the bond. Appellant's ability to make bond is not the sole criteria in setting bond. See Art. 17.05, Vernon's Ann.C.C.P. (1965).
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2861772/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-99-00194-CR
Guy Gibson, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 0990295, HONORABLE FRED MOORE, JUDGE PRESIDING
A jury convicted Guy Gibson of unauthorized use of a motor vehicle. Gibson
pleaded true to allegations of prior convictions, and the jury sentenced him to eight years in
prison. On appeal, he challenges the sufficiency of the evidence to support his conviction. We
will affirm the judgment.
BACKGROUND
Donald Daniel testified that his business's delivery vehicle was apparently stolen
over the New Year's holiday. He left the car--a blue 1978 Chevrolet Caprice four-door sedan,
license number NSK62Z--at his business on either December 30 or 31, 1998. When he returned
to work on January 2, 1999, the car was gone. He did not know appellant and had not given
anyone permission to drive the car. There was broken glass on the ground on the left side of
where the car had been parked. When he recovered the car from an impoundment lot, the plastic
housing of the steering column had been removed and there was a five-to-six-inch hole in it. He
also found a screwdriver that was not his on the floorboard of the car.
Austin police officer Timothy Enlow recovered the vehicle. Around midnight of
January 1, he stopped a blue 1978 Chevy sedan because the left headlight was out. Enlow also
noticed that the rear driver's side vent window was missing. The driver, appellant, had no
driver's license and gave a name (Wiley Pat) for which there was no record of a driver's license;
appellant also appeared nervous. Based on the lack of headlight and identification, Enlow decided
to arrest appellant. At the station, appellant gave an address which allowed police to discover his
identity.
After arresting appellant, Enlow examined the inside of the vehicle. He noticed
that the steering column was broken. He found a screwdriver in the front part of the vehicle.
Like the broken vent window, these two facts were consistent with a standard method of starting
a stolen car without keys, but also consistent with an owner who had lost his keys breaking in.
Enlow found a substance in the car that appeared to be crack cocaine, but turned out to be fake
crack.
On cross-examination, Enlow stated that Sammy Allen, the passenger in the car
with appellant, was a known crack addict. He explained the concept of a "crack rental"--a
situation in which a crack user, low on cash, lends his belongings (including a car) to a dealer in
exchange for crack. He explained that the dealers will then often lend the belongings to other
people. He also explained that some crack users will steal vehicles to get crack. On redirect
examination, however, he stated that the steering column of "crack rentals" is not ordinarily
popped because the owner surrenders the keys; on recross he conceded that the steering columns
of such vehicles were sometimes popped, but stated that he did not recall any other time a stolen
vehicle had been given as a "crack rental."
Enlow could not recall whether the car was an Impala or Caprice. He wrote in his
report that it was a blue 1978 four-door Chevrolet Impala, license number NSK62Z. He stated
that standard Austin Police Department procedure dictated that only the driver of a stolen car
would be arrested.
Appellant testified that he first saw the car, a blue 1978 Impala, when Samuel Allen
pulled up in the car and asked for his help in hooking up a stove. Getting in from the passenger
side, appellant said he did not see the enlarged hole in the steering column and did not notice the
broken window; the windows were down. Appellant said Allen was highly intoxicated and
driving like a drunk person. After they installed the stove in a house, appellant told Allen that
he would drive. He noticed that Allen was starting the car with a screwdriver, and said Allen told
him he had lost his keys. Appellant said he did not suspect that the car was stolen.
Appellant remembered the sequence of events surrounding his arrest slightly
differently than did Enlow. He believed he was arrested for lack of a driver's license and
insurance before he was even asked his name. He said Sammy Allen told Enlow that the car was
a crack rental from a white dope dealer. When Enlow found the suspected crack, Allen told him
it was "bimp" or fake crack. Appellant said he gave Enlow the fake name because he was afraid
that if he gave his real name he would be arrested on a traffic ticket warrant or a warrant for a
parole violation; he said that he had evaded arrest on the parole warrant by giving the false name
when stopped for minor traffic violations. When Enlow's computer search failed to turn up a
Willie Pat, appellant testified that he insisted Enlow check again because there would be a record
of his previous tickets under that name. He denied that he gave the fake name to avoid arrest for
driving a stolen car; he reasoned that a fake name would not protect him if the car was stolen.
Appellant said the computer at the police station turned up his previous arrests as Willie Pat, but
that analysis of his fingerprints revealed his actual name.
On cross-examination, the State explored appellant's criminal history; the court
limited the use of that evidence to the purpose of aiding in assessing appellant's credibility. He
had prior convictions for burglary of a vehicle, unauthorized use of a motor vehicle, burglary of
a habitation, and burglary of a vehicle; he was convicted of the latter on three separate times. On
redirect examination, appellant stated that he had pleaded guilty to each of the listed offenses
because he had committed them; to this charge, however, he pleaded not guilty because he insisted
he was innocent.
DISCUSSION
Gibson contends the evidence is insufficient to support two findings critical to the
conviction for unauthorized use of a motor vehicle. The statute provides that "a person commits
an offense if he intentionally or knowingly operates another's boat, airplane, or motor-propelled
vehicle without the effective consent of the owner." Tex. Penal Code Ann. § 31.07 (West 1994).
Gibson contends that there is insufficient evidence that he was driving the complainant's vehicle
or that he drove the vehicle knowing it was stolen.
When reviewing the legal sufficiency of the evidence, we view the evidence in the
light most favorable to the prosecution to determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 318-19 (1979). (1) The jury is the exclusive judge of the credibility of the witnesses and
of the weight to give their testimony. Miller v. State, 909 S.W.2d 568, 593 (Tex. App.--Austin
1995, no pet.).
There is legally sufficient evidence that Daniel owned the vehicle Gibson was
driving. Both cars were described as blue 1978 four-door Chevrolet sedans. The only
discrepancy between the description of Daniel's car and the impounded car is that Enlow wrote
in his report that Gibson was arrested in an Impala rather than a Caprice; testimony indicated that
the two models are quite similar. The license number in Enlow's report, however, matches the
license number on Daniel's car. The steering columns in both cars were broken, and a window
was broken in each car; a reasonable jury could discount small discrepancies in the description
of the size of the holes in the steering column and which window was broken in the car Daniel
recovered. Viewed in the light most favorable to the verdict, the evidence is sufficient to support
a finding that Gibson was driving Daniel's car. We overrule point one.
There is also legally sufficient evidence to support the jury's implicit finding that
Gibson drove the car knowing he did not have the owner's consent to drive this car. Appellant
contends that his testimony regarding Allen's "crack rental" story created a reasonable doubt on
this issue. The jurors, however, could reject portions of his testimony that they disbelieved. See
Miller, 909 S.W.2d at 593. Gibson was driving a car he undisputedly knew was not his own, a
car that was started with a screwdriver gouged into the steering column. Gibson knew that people
steal cars by starting them with screwdrivers. Such circumstantial evidence provides sufficient
evidence to support the finding that Gibson knew he was driving the car without the effective
consent of the owner. See Coleman v. State, 802 S.W.2d 394 (Tex. App.--Dallas 1990, no pet.);
see also Walker v. State, 846 S.W.2d 379, 382 (Tex. App.--Houston [14th Dist.] 1992, pet. ref'd).
Viewing the evidence in the light most favorable to the verdict, as the standard of review requires
us to do, we conclude that the evidence is sufficient to support the verdict. We overrule point
two.
CONCLUSION
Having overruled both points of error, we affirm the judgment.
Bea Ann Smith, Justice
Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel
Affirmed
Filed: December 2, 1999
Do Not Publish
1. Though Gibson does not specify in his points of error whether he challenges the legal or
factual sufficiency of the evidence, in the text of his argument he cites only the legal sufficiency
standard. We therefore need not consider the factual sufficiency of the evidence. We note as an
aside that the result would not differ even applying the factual sufficiency review standard outlined
in Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996).
ar">DISCUSSION
Gibson contends the evidence is insufficient to support two findings critical to the
conviction for unauthorized use of a motor vehicle. The statute provides that "a person commits
an offense if he intentionally or knowingly operates another's boat, airplane, or motor-propelled
vehicle without the effective consent of the owner." Tex. Penal Code Ann. § 31.07 (West 1994).
Gibson contends that there is insufficient evidence that he was driving the complainant's vehicle
or that he drove the vehicle knowing it was stolen.
When reviewing the legal sufficiency of the evidence, we view the evidence in the
light most favorable to the prosecution to determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 318-19 (1979). (1) The jury is the exclusive judge of the credibility of the witnesses and
of the weight to give their testimony. Miller v. State, 909 S.W.2d 568, 593 (Tex. App.--Austin
1995, no pet.).
There is legally sufficient evidence that Daniel owned the vehicle Gibson was
driving. Both cars were described as blue 1978 four-door Chevrolet sedans. The only
discrepancy between the description of Daniel's car and the impounded car is that Enlow wrote
in his report that Gibson was arrested in an Impala rather than a Caprice; testimony indicated that
the two models are quite similar. The license number in Enlow's report, however, matches the
license number on Daniel's car. The steering columns in both cars were broken, and a window
was broken in each car; a reasonable jury could discount small discrepancies in the description
of the size of the holes in the steering column and which window was broken in the car Daniel
recovered. Viewed in the light most favorable to the verdict, the evidence is sufficient to support
a finding that Gibson was driving Daniel's car. We overrule point one. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/93951/ | 154 U.S. 447 (1894)
INTERSTATE COMMERCE COMMISSION
v.
BRIMSON.
No. 883.
Supreme Court of United States.
Argued April 16, 1894.
Decided May 26, 1894.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.
*449 Mr. Solicitor General for appellant. Mr. Attorney General and Mr. George F. Edmunds filed a brief for same.
Mr. E. Parmalee Prentice, (with whom were Mr. J.C. Hutchins and Mr. C.S. Holt on the brief,) for appellees.
*456 MR. JUSTICE HARLAN delivered the opinion of the court.
This appeal brings up for review a judgment rendered December 7, 1892, dismissing a petition filed in the Circuit Court of the United States on the 15th day of July, 1892, by the Interstate Commerce Commission under the act of Congress entitled "An act to regulate commerce," approved February 4, 1887, and amended by the acts of March 2, 1889, and February 10, 1891. 24 Stat. 379, c. 104; 25 Stat. 855, c. 382; 26 Stat. 743, c. 128; 1 Supp. Rev. Stat. 529, 684, 891.
The petition was based on the twelfth section of the act authorizing the Commission to invoke the aid of any court of *457 the United States in requiring the attendance and testimony of witnesses, and the production of documents, books, and papers.
The Circuit Court held that section to be unconstitutional and void, as imposing on the judicial tribunal of the United States duties that were not judicial in their nature. In the judgment of that court, this proceeding was not a case to which the judicial power of the United States extended. 53 Fed. Rep. 476, 480.
The provisions of the Interstate Commerce Act have no application to the transportation of passengers or property, or to the receiving, delivering, storing, or handling of property, wholly within one State and not shipped to a foreign country from any State or Territory, or from a foreign country to any State or Territory. But they are declared to be applicable to carriers engaged in the transportation of passengers or property wholly by railroad, or partly by railroad and partly by water when both are used, under a common control, management, or arrangement, for a continuous carriage or shipment from one State or Territory of the United States, or the District of Columbia, to any other State or Territory of the United States, or the District of Columbia, or from any place in the United States to an adjacent foreign country, or from any place in the United States through a foreign country to any other place in the United States, and also to the transportation in like manner of property shipped from any place in the United States to a foreign country and carried from such place to a port of transshipment, or shipped from a foreign country to any place in the United States and carried to such place from a port of entry either in the United States or an adjacent foreign country.
The term "railroad" as used in the act includes all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any corporation operating a railroad, whether owned or operated under a contract, agreement, or lease; and the term "transportation" includes all instrumentalities of shipment or carriage.
All charges made for services rendered or to be rendered in *458 the transportation of passengers or property, as above stated, or in connection therewith, or for the receiving, delivering, storing, or handling of such property, are required to be reasonable and just; and every unjust and unreasonable charge for such service is prohibited and declared to be unlawful. § 1.
Any carrier subject to the provisions of the act, directly or indirectly, by special rate, rebate, drawback, or other device, charging, demanding, collecting, or receiving from any person or persons a greater or less compensation for services rendered or to be rendered in the transportation of passengers or property, than it charges, demands, collects, or receives for doing a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, is to be deemed guilty of unjust discrimination, which the act expressly declares to be unlawful. § 2.
So it is made unlawful for any such carrier to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or to any particular description of traffic, or to subject any particular person, company, firm, corporation, or locality, or any particular kind of traffic, to undue or unreasonable prejudice or disadvantage in any respect. And carriers subject to the provisions of the act are required to afford, according to their respective powers, all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines, and for the receiving, forwarding, and delivering of passengers and property to and from their several lines and those connecting therewith, and not to discriminate in their rates and charges between such connecting lines; but this regulation does not require a carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business. § 3.
It is made unlawful for any carrier subject to the provisions of the act to charge or receive any greater compensation in the aggregate for the transportation of passengers or of like kind of property under substantially similar circumstances and conditions, *459 for a shorter than for a longer distance over the same line, in the same direction, the shorter being included within the longer distance; but this does not authorize the charging and receiving as great compensation for a short as for a longer distance. Upon application to the Commission, the carrier may in special cases after investigation by that body, be authorized to charge less for longer than for short distances for the transportation of passengers or property; and the Commission may from time to time prescribe the extent to which the carrier may be relieved from the operation of this section. § 4.
It is also made unlawful for any carrier subject to the provisions of the act to enter into any contract, agreement, or combination with any other carrier or carriers for the pooling of freights of different and competing railroads, or to divide between them the aggregate or net proceeds of the earnings of such railroads, or any portion thereof; and in any case of an agreement for the pooling of freights as aforesaid each day of its continuance is deemed a separate offence. § 5.
Another section of the act provides for the printing and posting by carriers of their rates, fares, and charges for the transportation of passengers and property, including terminal charges, classifications of freight, and any rules or regulations affecting such rates, fares, and charges, including the rates established and charged for freight received in this country to be carried through a foreign country to any place in the United States; forbids any advance or reduction in such rates, fares, and charges, so established and published, except upon public notice, of which changes the Commission shall be notified; requires every carrier to file with the Commission copies of all contracts, agreements, or arrangements with other carriers relating to any traffic affected by the provisions of the act, as well as copies of schedules of joint tariffs of rates, fares, or charges for passengers and property over continuous lines or routes operated by more than one carrier; declares it to be unlawful for any carrier, party to any joint tariff, to charge, demand, collect, or receive from any person or persons a greater or less compensation for the transportation of *460 persons or property, or for any services in connection therewith between any points as to which a joint rate, fare, or charge is named thereon than is specified in the schedule filed with the Commission in force at the time; authorizes in addition to the penalties prescribed for neglect or refusal to file or publish rates, fares, and charges, a writ of mandamus to be issued by any Circuit Court of the United States in the judicial district wherein the principal office of the carrier is situated, or wherein such offence may be committed, and if such carrier be a foreign corporation, in the judicial circuit wherein it accepts traffic, and has an agent to perform such service, to compel compliance with the above provisions of the section relating to schedules of rates, fares, and charges such writ to issue in the name of the people of the United States, at the relation of the commissioners appointed under the provisions of the act, and the failure to comply with its requirements being punishable as and for a contempt; and empowers the commissioners, as complainants, to apply, in any such Circuit Court of the United States, for a writ of injunction against the carrier, to restrain it from receiving or transporting property among the several States and Territories of the United States, or between the United States and adjacent foreign countries, or between ports of transshipment and of entry and the several States and Territories of the United States, as mentioned in the first section of the act, until the carrier shall have complied with the provisions last referred to. § 6.
So a common carrier subject to the provisions of the act is forbidden to enter into any combination, contract, or agreement, expressed or implied, to prevent by change of time schedule, carriage in different cars, or by other means or devices, the carriage of freights from being continuous from the place of shipment to the place of destination; and no break of bulk, stoppage, or interruption made by such common carrier shall prevent the carriage of freights from being, and being treated, as one continuous carriage from the place of shipment to the place of destination, unless such break, stoppage, or interruption was made in good faith for some *461 necessary purpose, and without any intent to avoid or unnecessarily interrupt such continuous carriage or to evade any of the provisions of the act. § 7.
By the eleventh section a commission is created and established, to be known as the Interstate Commerce Commission, and to be composed of five commissioners, appointed by the President, by and with the advice and consent of the Senate. § 11.
Other sections give a right of action to the persons injured by the acts of carriers done in violation of the statute; prescribe penalties against carriers for illegal exactions and discriminations; and indicate how the provisions of the statute may be enforced against carriers by the Commission.
The twelfth section, 26 Stat. 743, c. 128, the validity of certain parts of which is involved in this proceeding, provides as follows: "That the Commission hereby created shall have authority to inquire into the management of the business of all common carriers subject to the provisions of this act, and shall keep itself informed as to the manner and method in which the same is conducted, and shall have the right to obtain from such common carriers full and complete information necessary to enable the Commission to perform the duties and carry out the objects for which it was created; and the Commission is hereby authorized and required to execute and enforce the provisions of this act; and, upon the request of the Commission, it shall be the duty of any district attorney of the United States to whom the Commission may apply to institute in the proper court and to prosecute under the direction of the Attorney General of the United States all necessary proceedings for the enforcement of the provisions of this act and for the punishment of all violations thereof, and the costs and expenses of such prosecution shall be paid out of the appropriation for the expenses of the courts of the United States; and for the purposes of this act the Commission shall have power to require, by subpna, the attendance and testimony of witnesses and the production of all books, papers, tariffs, contracts, agreements, and documents relating to any matter under investigation.
*462 "Such attendance of witnesses and the production of such documentary evidence, may be required from any place in the United States, at any designated place of hearing. And in case of disobedience to a subpna the Commission, or any party to a proceeding before the Commission, may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of books, papers, and documents under the provisions of this section.
"And any of the Circuit Courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpna issued to any common carrier subject to the provisions of this act, or other person, issue an order requiring such common carrier or other person to appear before said Commission (and produce books and papers if so ordered) and give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as a contempt thereof. The claim that any such testimony or evidence may tend to criminate the person giving such evidence shall not excuse such witness from testifying; but such evidence or testimony shall not be used against such person on the trial of any criminal proceeding.
"The testimony of any witness may be taken, at the instance of a party, in any proceeding or investigation depending before the Commission, by deposition, at any time after a cause or proceeding is at issue on petition and answer. The Commission may also order testimony to be taken by deposition in any proceeding or investigation pending before it, at any stage of such proceeding or investigation. Such depositions may be taken before any judge of any court of the United States, or any commissioner of a circuit, or any clerk of a District or Circuit Court, or any chancellor, justice, or judge of a Supreme or Superior Court, mayor or chief magistrate of a city, judge of a county court, or court of common pleas of any of the United States, or any notary public, not being of counsel or attorney to either of the parties, nor interested in the event of the proceeding or investigation. Reasonable notice must first be given in writing by the party or his attorney proposing to *463 take such deposition to the opposite party or his attorney of record, as either may be nearest, which notice shall state the name of the witness and the time and place of the taking of his deposition. Any person may be compelled to appear and depose, and to produce documentary evidence, in the same manner as witnesses may be compelled to appear and testify and produce documentary evidence before the Commission as hereinbefore provided.
"Every person deposing as herein provided shall be cautioned and sworn (or affirm, if he so request) to testify the whole truth, and shall be carefully examined. His testimony shall be reduced to writing by the magistrate taking the deposition, or under his direction, and shall, after it has been reduced to writing, be subscribed by the deponent.
"If a witness whose testimony may be desired to be taken by deposition be in a foreign country, the deposition may be taken before an officer or person designated by the Commission, or agreed upon by the parties by stipulation in writing to be filed with Commission. All depositions must be promptly filed with the Commission.
"Witnesses whose depositions are taken pursuant to this act, and the magistrate or other officer taking the same, shall severally be entitled to the same fees as are paid for like services in the courts of the United States." § 12.
The nature of the present proceeding, instituted pursuant to the authority conferred by that section, will appear from the following summary of the pleadings and orders in the cause:
Prior to the 14th of June, 1892, informal complaint was made to the Interstate Commerce Commission, under the provisions of the Interstate Commerce Act, that the Illinois Steel Company, a corporation of Illinois, had caused to be incorporated under the laws of that State the Calumet and Blue Island Railroad Company, the Chicago and Southeastern Railway Company of Illinois, the Joliet and Blue Island Railway Company, and the Chicago and Kenosha Railway Company, for the purpose of operating its switches and side tracks at South Chicago, Chicago, and Joliet, respectively, and engaging in traffic by a continuous shipment from cities and *464 places without to cities and places within Illinois, in connection, respectively, with the Baltimore and Ohio Railroad Company, the Baltimore and Ohio Southwestern Railroad Company, the Illinois Central Railroad Company, the Lake Shore and Michigan Southern Railway Company, the Chicago, Rock Island and Pacific Railway Company, the Pittsburgh, Fort Wayne and Chicago Railway Company, the Pennsylvania Company, the Pennsylvania Railroad Company, the Belt Railway Company, the Chicago and Alton Railroad Company, the Chicago Railway Transfer Company, the Atchison, Topeka and Santa Fé Railway Company, the Elgin, Joliet and Eastern Railway Company, the Chicago and Northwestern Railway Company, and the Chicago, Milwaukee and St. Paul Railway Company; that it had also caused to be incorporated under the laws of Wisconsin, for the purpose of operating its switches and side tracks at or near Milwaukee, in that State, and engaging in traffic or traffic by a continuous shipment from places and cities without to cities and places within Wisconsin, in connection with the Chicago, Milwaukee and St. Paul Railway Company, and the Chicago and Northwestern Railway Company; and that said Illinois Steel Company owned and controlled the above-named companies, which it caused to be incorporated under the laws of Illinois, and operated them in connection with the other companies named, "as a device for the purpose of evading the provisions of the act to regulate commerce, and obtaining special, illegal, unjust, and unreasonable rates for the transportation of interstate traffic," and, by the connivance and consent of said other connecting railroad companies, in such a manner as to give to the Illinois Steel Company an illegal, undue, and unreasonable preference and advantage, subjecting other persons, firms, and companies to undue and unreasonable prejudice and discrimination in the transportation of property from divers cities and places without the States of Illinois and Wisconsin to divers cities and towns within those States.
It was made to appear to the Commission that the companies so owned, controlled, and operated by the Illinois Steel Company for more than the six months then last past had *465 been and were still engaged in the transportation of property by railroad in connection with the other companies named "under a common control, management, and arrangement for a continuous carriage or shipment" from divers cities and towns without to divers cities and towns within the States of Illinois and Wisconsin, and that none of the companies, so owned, controlled, and operated, had filed with the Commission copies of their contracts, agreements, and common arrangements with the other companies, nor their tariffs nor schedules of rates, fares, and charges as required by the act of Congress.
The Commission, of its own motion, decided to investigate the matters set forth in said informal complaint by inquiring into the business of all of said railroad companies and the management thereof with reference as well to the alleged making of illegal, unjust, and unreasonable rates, as to the alleged unjust and illegal discrimination in favor of the Illinois Steel Company, and the failure, as above stated, to file with the Commission the above contracts, agreements, and tariffs.
An order was thereupon made by the Commission, which recited the facts of the informal complaint made to it, and required each of the above-mentioned companies to make and file in its office in Washington, a full, complete, perfect, and specific verified answer, setting forth all the facts in regard to the matters complained of and responding to the following questions:
1. Does any contract, agreement, or arrangement in writing or otherwise exist between the companies above alleged to be under the control [of] and operated by the said Illinois Steel Company and any of the other companies with reference to interstate traffic? If so, state the contract, agreement, or arrangement.
2. Or [are] any tariffs of rates and charges for the transportation of interstate property in effect between said companies above alleged to be under the control of and operated by the Illinois Steel Company and said other railroad companies? If so, what are they and what are the divisions thereof between the several carriers?
*466 3. Have the companies above alleged to be under the control of and operated by the Illinois Steel Company received interstate traffic from any of the other carriers above mentioned during the six months last past, or have they delivered any such traffic to such other carriers during that time, for any person, firm, or company other than the Illinois Steel Company? and if so, to what amount?
The order further required all of the companies named to appear before the Commission at a named time and place in Chicago, when that body would proceed to make inquiry into and investigate the management of the said business by the carriers so ordered to appear.
Each of the companies which, according to the allegations of the petition, the Illinois Steel Company had caused to be incorporated, filed its answer with the Commission, and averred that it had in all respects complied with the obligations imposed upon it by the laws of the State and of the United States; that it was not engaged in interstate commerce within six months preceding the filing of the complaint against them; and it answered "No" to each of the above specific questions. The Calumet and Blue Island Railway Company also denied that the operation of its railways was a device to evade the provision of the Interstate Commerce Act, or had resulted in obtaining for the Illinois Steel Company special, illegal, unjust, or unreasonable rates in interstate traffic or in securing to that company illegal, undue, or unreasonable preferences.
The Commission, notwithstanding these denials, conceived it to be their duty to proceed with the investigation by the examination of witnesses and the books and papers of the corporations involved, and especially to ascertain whether the Illinois Steel Company was the owner in fact of the railroads, which it was alleged to have caused to be incorporated, and whether such incorporations were for the purpose of giving to that company an undue and illegal preference in the transportation of its property and freight.
Among the witnesses subpnaed to testify before the Commission was William G. Brimson, the president and manager *467 of the five roads so incorporated in Illinois. Being asked what constituted the principal traffic of the roads, he said: "The business of these roads, except as indicated in the answers, is that of switching switching business. We do a switching and terminal business, in that we are open to any business, for anybody's property, or persons who may locate at such place where we can go to them; mainly our business is with the Illinois Steel Company. This is the great proportion of our business." In reply to the question whether his company engaged in transportation business other than as stated by him, he said that they did not, "except the Calumet and Blue Island, as stated in our reply. On that we do engage in other business to a certain extent." Having stated that his companies did not engage in the transportation business for everybody and anybody having occasion to employ them, and that their business was limited to the above companies with which they had traffic arrangements, he was asked whether the companies of which he was president and manager were owned by the Illinois Steel Company. The witness, under the advice of counsel, refused to answer this question.
J.S. Keefe, secretary and auditor of the five roads mentioned, was examined by the Commission as a witness. He admitted that he had in his possession a book showing the names of the stockholders of the Calumet and Blue Island Railway Company, but refused, upon the demand of the Commission, to produce it. He also refused to answer the question, "Do you know, as a matter of fact, whether the Illinois Steel Company owns the greater part of the stock of these several railroads?"
William R. Stirling, first vice-president of the Illinois Steel Company, was also examined as a witness, and after stating that that company had a contract with the five railroads in question to handle the railroad business at the five "plants" of the Steel Company, refused to answer the question, "Is that the only relation which your company sustains to these railroad companies?"
On the succeeding day the Commission issued a subpna *468 duces tecum, directed to J.S. Keefe, secretary and auditor of the five railroads in question, commanding him to appear before that body, and bring with him the stock books of those companies. A like subpna was issued to William R. Stirling, as first vice-president of the Steel Company, commanding him to appear before the Commission and produce the stock books of that company. Keefe and Stirling appeared in answer to the subpnas, but refused to produce the books or either of them so ordered to be produced.
The Commission thereupon, on the 15th day of July, 1892, presented to and filed in the court below its petition embodying the above facts, and prayed that an order be made requiring and commanding Brimson, Keefe, and Stirling to appear before that body and answer the several questions propounded by them and which they had respectively refused to answer, and requiring Keefe and Stirling to appear and produce before the Commission the stock books above referred to as in their possession.
The answers of Brimson, Keefe, and Stirling in the present proceeding, besides insisting that the questions propounded to them, respectively, were immaterial and irrelevant, were based mainly upon the ground that so much of the Interstate Commerce Act as empowered the Commission to require the attendance and testimony of witnesses and the production of books, papers, and documents, and authorized the Circuit Court of the United States to order common carriers or persons to appear before the Commission and produce books and papers and give evidence, and to punish by process for contempt any failure to obey such order of the court, was repugnant to the Constitution of the United States.
Is the twelfth section of the act unconstitutional and void, so far as it authorizes or requires the Circuit Courts of the United States to use their process in aid of inquiries before the Commission? The court recognizes the importance of this question, and has bestowed upon it the most careful consideration.
As the Constitution extends the judicial power of the United States to all cases in law and equity arising under that instrument *469 or under the laws of the United States, as well to all controversies to which the United States shall be a party, (Art. 3, sec. 2,) and as the Circuit Courts of the United States are capable, under the statutes defining and regulating their jurisdiction, of exerting such power in cases or controversies of that character, within the limits prescribed by Congress, 25 Stat. 434, c. 866, the fundamental inquiry on this appeal is whether the present proceeding is a "case" or "controversy" within the meaning of the Constitution. The Circuit Court, as we have seen, regarded the petition of the Interstate Commerce Commission as nothing more than an application by an administrative body to a judicial tribunal for the exercise of its functions in aid of the execution of duties not of a judicial nature, and accordingly adjudged that this proceeding did not constitute a case or controversy to which the judicial power of the United States could be extended.
At the same time the learned court said: "Undoubtedly, Congress may confer upon a non-judicial body authority to obtain information necessary for legitimate governmental purposes, and make refusal to appear and testify before it touching matters pertinent to any authorized inquiry, an offence punishable by the courts, subject, however, to the privilege of witnesses to make no disclosures which might tend to criminate them or subject them to penalties or forfeitures. A prosecution or an action for violation of such a statute would clearly be an original suit or controversy between parties within the meaning of the Constitution, and not a mere application, like the present one, for the exercise of the judicial power in aid of a non-judicial body." In re Interstate Commerce Commission, 53 Fed. Rep. 476, 480.
In other words, if the Interstate Commerce Act made the refusal of a witness duly summoned to appear and testify before the Commission in respect to a matter rightfully committed by Congress to that body for examination, an offence against the United States, punishable by fine or imprisonment, or both, a criminal prosecution or an information for the violation of such a statute would be a case or controversy to which the judicial power of the United States extended; *470 while a direct civil proceeding, expressly authorized by an act of Congress, in the name of the Commission, and under the direction of the Attorney General of the United States, against the witness so refusing to testify, to compel him to give evidence before the Commission touching the same matter, would not be a case or controversy of which cognizance could be taken by any court established by Congress to receive the judicial power of the United States.
This interpretation of the Constitution would restrict the employment of means to carry into effect powers granted to Congress within much narrower limits than, in our judgment, is warranted by that instrument.
The Constitution expressly confers upon Congress the power to regulate commerce with foreign nations, among the several States, and with the Indian tribes, and to make all laws necessary and proper for carrying that power into execution. Art. 1, § 8. While the completely internal commerce of a State is reserved to the State itself, because never surrendered to the general government, commerce, the regulation of which is committed by the Constitution to Congress, comprehends traffic, navigation, and every species of commercial intercourse or trade between the United States, among the several States, and with the Indian tribes. Gibbons v. Ogden, 9 Wheat. 1, 193, 194. "It may be doubted," this court has said, "whether any of the evils proceeding from the feebleness of the Federal government contributed more to that great revolution which introduced the present system than the deep and general conviction that commerce ought to be regulated by Congress. It is not, therefore, matter of surprise that the grant should be as extensive as the mischief, and should comprehend all foreign commerce, and all commerce among the States. To construe the power so as to impair its efficiency would tend to defeat an object, in the attainment of which the American public took, and justly took, that strong interest which arose from a full conviction of its necessity." Brown v. Maryland, 12 Wheat.419,446; Phila. Steamship Co. v. Pennsylvania, 122 U.S. 326, 346. "In the matter of interstate commerce," this court, speaking by Mr. Justice Bradley, has declared, "the United *471 States are but one country, and are and must be subject to one system of regulations, and not to a multitude of systems." Robbins v. Shelby Taxing District, 120 U.S. 489, 494. The same principle was announced by the present Chief Justice in Stoutenburgh v. Hennick, 129 U.S. 141, 148.
What is the nature of the power thus expressly given to Congress, and to what extent, and under what restrictions, may it be constitutionally exerted?
This question was answered when Chief Justice Marshall said that it was the power "to prescribe the rule by which commerce is to be governed." "This power," the Chief Justice continued, "like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations and among the several States is vested in Congress as absolutely as it would be in a single government having in its constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States. The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied to secure them from its abuse. They are the restraints on which the people must often rely solely in all representative governments." Gibbons v. Ogden, 9 Wheat. 1, 189, 196-7.
Congress thus having plenary power subject to the limitations imposed by the Constitution to prescribe the rule by which commerce among the several States is to be governed, the question necessarily arises, what are the principles that should control the judiciary when determining whether a particular act of Congress, avowedly adopted in execution of that power, is consistent with the fundamental limitations of the Constitution?
*472 The general principle applicable to this subject was long ago announced by this court, and has been so often affirmed and applied that argument in support of it is unnecessary, even if it were possible to suggest any thought not heretofore expressed in the adjudged cases. In the great case of McCulloch v. Maryland, 4 Wheat. 316, 421, 423, it was said: "The sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers-it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional." Again: "Where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power."
Guided by these principles, we proceed to inquire whether the twelfth section of the Interstate Commerce Act, so far as it authorizes the present proceeding, assumes to invest the Circuit Courts of the United States with functions that are not judicial.
It was not disputed at the bar, nor indeed can it be successfully denied, that the prohibition of unjust charges, discriminations, or preferences, by carriers engaged in interstate commerce, in respect to property or persons transported from one State to another, is a proper regulation of interstate commerce, or that the object that Congress has in view by the act in question may be legitimately accomplished by it under the power to regulate commerce among the several States. In every substantial sense such prohibition is a rule by which interstate commerce must be governed, and is plainly adapted to the object intended to be accomplished. The same observation *473 may be made in respect to those provisions empowering the Commission to inquire into the management of the business of carriers subject to the provisions of the act, and to investigate the whole subject of interstate commerce as conducted by such carriers, and, in that way, to obtain full and accurate information of all matters involved in the enforcement of the act of Congress. It was clearly competent for Congress, to that end, to invest the Commission with authority to require the attendance and testimony of witnesses, and the production of books, papers, tariffs, contracts, agreements, and documents relating to any matter legally committed to that body for investigation. We do not understand that any of these propositions are disputed in this case.
Interpreting the Interstate Commerce Act as applicable, and as intended to apply, only to matters involved in the regulation of commerce, and which Congress may rightfully subject to investigation by a commission established for the purpose of enforcing that act, we are unable to say that its provisions are not appropriate and plainly adapted to the protection of interstate commerce from burdens that are or may be, directly and indirectly, imposed upon it by means of unjust and unreasonable discriminations, charges, and preferences. Congress is not limited in its employment of means to those that are absolutely essential to the accomplishment of objects within the scope of the powers granted to it. It is a settled principle of constitutional law that "the government which has a right to do an act, and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means; and those who contend that it may not select any appropriate means, that one particular mode of effecting the object is excepted, take upon themselves the burden of establishing that exception." 4 Wheat. 316, 409. The test of the power of Congress is not the judgment of the courts that particular means are not the best that could have been employed to effect the end contemplated by the legislative department. The judiciary can only inquire whether the means devised in the execution of a power granted are forbidden by the Constitution. It cannot go beyond that inquiry *474 without entrenching upon the domain of another department of the government. That it may not do with safety to our institutions. Sinking Fund Cases, 99 U.S. 700, 718.
An adjudication that Congress could not establish an administrative body with authority to investigate the subject of interstate commerce and with power to call witnesses before it, and to require the production of books, documents, and papers relating to that subject, would go far towards defeating the object for which the people of the United States placed commerce among the States under national control. All must recognize the fact that the full information necessary as a basis of intelligent legislation by Congress from time to time upon the subject of interstate commerce cannot be obtained, nor can the rules established for the regulation of such commerce be efficiently enforced, otherwise than through the instrumentality of an administrative body, representing the whole country, always watchful of the general interests, and charged with the duty not only of obtaining the required information, but of compelling by all lawful methods obedience to such rules.
It is to be observed that independently of any question concerning the nature of the matter under investigation by the Commission however legitimate or however vital to the public interests the inquiry being conducted by that body the judgment below rests upon the broad ground that no direct proceeding to compel the attendance of a witness before the Commission, or to require him to answer questions put to him, or to compel the production of books, documents, or papers in his possession relating to the subject under examination, can be deemed a case or controversy of which, under the Constitution, a court of the United States may take cognizance, even if such proceeding be in form judicial. And the theory upon which the judgment proceeded is applicable alike to corporations and individuals, although by the established doctrine of the courts a railroad corporation may, under legislative sanction and upon making compensation, appropriate private property for the purposes of its right of way, because *475 and only because its road is a public highway established primarily for the convenience of the people and to subserve public objects, and, therefore, subject to governmental control. Cherokee Nation v. Kansas Railway Co., 135 U.S. 641, 657.
What is a case or controversy to which, under the Constitution, the judicial power of the United States extends? Referring to the clause of that instrument, which extends the judicial power of the United States to all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made or that shall be made under their authority, this court, speaking by Chief Justice Marshall, has said: "This clause enables the judicial department to receive jurisdiction to the full extent of the Constitution, laws, and treaties of the United States when any question respecting them shall assume such a form that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case, and the Constitution declares that the judicial power shall extend to all cases arising under the Constitution, laws, and treaties of the United States." Osborn v. Bank of the United States, 9 Wheat. 738, 819. And in Murray v. Hoboken Co., 18 How. 272, 284, Mr. Justice Curtis, after observing that Congress cannot withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty, nor, on the other hand, bring under judicial power a matter which, from its nature, is not a subject for judicial determination, said: "At the same time there are matters involving public rights which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which Congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper." So, in Smith v. Adams, 130 U.S. 173, Mr. Justice Field, speaking for the court, said that the terms "cases" and "controversies" in the Constitution embraced "the claims or contentions of litigants brought before the courts for adjudication by regular proceedings established *476 for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs."
Testing the present proceeding by these principles, we are of opinion that it is one that can properly be brought under judicial cognizance.
We have before us an act of Congress authorizing the Interstate Commerce Commission to summon witnesses and to require the production of books, papers, tariffs, contracts, agreements, and documents relating to the matter under investigation. The constitutionality of this provision assuming it to be applicable to a matter that may be legally entrusted to an administrative body for investigation is, we repeat, not disputed and is beyond dispute. Upon every one, therefore, who owes allegiance to the United States, or who is within its jurisdiction, enjoying the protection that its government affords, rests an obligation to respect the national will as thus expressed in conformity with the Constitution. As every citizen is bound to obey the law and to yield obedience to the constituted authorities acting within the law, this power conferred upon the Commission imposes upon any one, summoned by that body to appear and to testify, the duty of appearing and testifying, and upon any one required to produce such books, papers, tariffs, contracts, agreements, and documents, the duty of producing them, if the testimony sought, and the books, papers, etc., called for, relate to the matter under investigation, if such matter is one which the Commission is legally entitled to investigate, and if the witness is not excused, on some personal ground, from doing what the Commission requires at his hands. These propositions seem to be so clear and indisputable that any attempt to sustain them by argument would be of no value in the discussion. Whether the Commission is entitled to the evidence it seeks, and whether the refusal of the witness to testify or to produce books, papers, etc., in his possession, is or is not in violation of his duty or in derogation of the rights of the United States, seeking to execute a power expressly granted to Congress, are the distinct issues between that body and the witness. They are issues between the United States and those *477 who dispute the validity of an act of Congress and seek to obstruct its enforcement. And these issues, made in the form prescribed by the act of Congress, are so presented that the judicial power is capable of acting on them.
The question so presented is substantially, if not precisely, that which would arise if the witness was proceeded against by indictment under an act of Congress declaring it to be an offence against the United States for any one to refuse to testify before the Commission after being duly summoned, or to produce books, papers, etc., in his possession upon notice to do so, or imposing penalties for such refusal to testify or to produce the required books, papers, and documents. A prosecution for such offence or a proceeding by information to recover such penalties would have as its real and ultimate object to compel obedience to the rightful orders of the Commission, while it was exerting the powers given to it by Congress. And such is the sole object of the present direct proceeding. The United States asserts its right, under the Constitution and laws, to have these appellees answer the questions propounded to them by the Commission, and to produce specified books, papers, etc., in their possession or under their control. It insists that the evidence called for is material in the matter under investigation; that the subject of investigation is within legislative cognizance, and may be inquired of by any tribunal constituted by Congress for that purpose. The appellees deny that any such rights exist in the general government, or that they are under a legal duty, even if such evidence be important or vital in the enforcement of the Interstate Commerce Act, to do what is required of them by the Commission. Thus has arisen a dispute involving rights or claims asserted by the respective parties to it. And the power to determine it directly, and, as between the parties, finally, must reside somewhere. It cannot be that the general government, with all the power conferred upon it by the people of the United States, is helpless in such an emergency, and is unable to provide some method, judicial in form, and direct in its operation, for the prompt and conclusive determination of this dispute.
*478 As the Circuit Court is competent under the law by which it was ordained and established to take jurisdiction of the parties, and as a case arises under the Constitution or laws of the United States when its decision depends upon either, why is not this proceeding judicial in form and instituted for the determination of distinct issues between the parties, as defined by formal pleadings, a case or controversy for judicial cognizance, within the meaning of the Constitution? It must be so regarded, unless, as is contended, Congress is without power to provide any method for enforcing the statute or compelling obedience to the lawful orders of the Commission, except through criminal prosecutions or by civil actions to recover penalties imposed for non-compliance with such orders. But no limitation of that kind upon the power of Congress to regulate commerce among the States is justified either by the letter or the spirit of the Constitution. Any such rule of constitutional interpretation, if applied to all the grants of power made to Congress, would defeat the principal objects for which the Constitution was ordained. As the issues are so presented that the judicial power is capable of acting on them finally as between the parties before the court, we cannot adjudge that the mode prescribed for enforcing the lawful orders of the Interstate Commission is not calculated to attain the object for which Congress was given power to regulate interstate commerce. It cannot be so declared unless the incompatibility between the Constitution and the act of Congress is clear and strong. Fletcher v. Peck, 6 Cranch, 87, 128. In accomplishing the objects of a power granted to it, Congress may employ any one or all the modes that are appropriate to the end in view, taking care only that no mode employed is inconsistent with the limitations of the Constitution.
We do not overlook these constitutional limitations which, for the protection of personal rights, must necessarily attend all investigations conducted under the authority of Congress. Neither branch of the legislative department, still less any merely administrative body, established by Congress, possesses, or can be invested with, a general power of making inquiry into the private affairs of the citizen. Kilbourn v. Thompson, *479 103 U.S. 168, 190. We said in Boyd v. United States, 116 U.S. 616, 630, and it cannot be too often repeated, that the principles that embody the essence of constitutional liberty and security forbid all invasions on the part of the government and its employés of the sanctity of a man's home, and the privacies of his life. As said by Mr. Justice Field in In re Pacific Railway Commission, 32 Fed. Rep. 241, 250, "of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves, not merely protection of his person from assault, but exemption of his private affairs, books, and papers from the inspection and scrutiny of others. Without the enjoyment of this right, all others would lose half their value."
It was said in argument that the twelfth section was in derogation of those fundamental guarantees of personal rights that are recognized by the Constitution as inhering in the freedom of the citizen. It is scarcely necessary to say that the power given to Congress to regulate interstate commerce does not carry with it any power to destroy or impair those guarantees. This court has already spoken fully upon that general subject in Counselman v. Hitchcock, 142 U.S. 547. We need not add anything to what has been there said. Suffice it in the present case to say that as the Interstate Commerce Commission, by petition in a Circuit Court of the United States, seeks, upon grounds distinctly set forth, an order to compel appellees to answer particular questions and to produce certain books, papers, etc., in their possession, it was open to each of them to contend before that court that he was protected by the Constitution from making answer to the questions propounded to him; or that he was not legally bound to produce the books, papers, etc., ordered to be produced; or that neither the questions propounded nor the books, papers, etc., called for relate to the particular matter under investigation, nor to any matter which the Commission is entitled under the Constitution or laws to investigate. These issues being determined in their favor by the court below, the petition of the Commission could have been dismissed upon its merits.
*480 It may be proper to state in this connection that after the decision in Counselman v. Hitchcock, the Interstate Commerce Act was amended by an act approved February 11, 1893, which provides "that no person shall be excused from attending and testifying, or from producing books, papers, tariffs, contracts, agreements, and documents before the Interstate Commerce Commission, or in obedience to the subpna of the Commission, whether such subpna be signed or issued by one or more commissioners, or in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of the act of Congress, entitled `An act to regulate commerce,' approved February fourth, eighteen hundred and eighty-seven, or of any amendment thereof, on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may testify, or produce evidence, documentary or otherwise, before said Commission, or in obedience to its subpoena, or the subpna of either of them, or in any such case or proceeding: Provided, That no person so testifying shall be exempt from prosecution and punishment for perjury committed in so testifying. Any person who shall neglect or refuse to attend and testify, or to answer any lawful inquiry, or to produce books, papers, tariffs, contracts, agreements, and documents, if in his power to do so, in obedience to the subpna or lawful requirement of the Commission, shall be guilty of an offence, and upon conviction thereof by a court of competent jurisdiction shall be punished by fine not less than one hundred dollars nor more than five thousand dollars, or by imprisonment for not more than one year, or by both such fine and imprisonment." 27 Stat. 443, c. 83. But that act was not in force when this case was determined below. Nor does it reach the question whether a proceeding like the present one can be maintained in a Circuit Court of the United States.
In the course of the argument at the bar our attention was *481 called to Hayburn's Case, 2 Dall. 409, and United States v. Ferreira, 13 How. 40, 46, as announcing principles not in harmony with the views we have expressed in this opinion.
Hayburn's case was an application for a mandamus to be directed to the Circuit Court of the United States for the District of Pennsylvania, commanding that court to proceed in a petition by Hayburn to be put on the pension list of the United States in conformity with an act of Congress, approved March 23, 1792, c. 11, 1 Stat. 243, which provided for the settlement of the claims of widows and orphans barred by limitations previously established, and to regulate claims to invalid pensions. This court took the case under advisement, but as Congress provided in another way for the relief of invalid pensioners, no decision was made. Nevertheless, by a note to Hayburn's case, we are informed of the views expressed at the circuit by different members of this court in relation to the act of 1792. They concurred in holding that it was not in the power of Congress to assign to the courts of the United States any duties except such as were properly judicial, and to be performed in a judicial manner; and that the duties assigned to the Circuit Courts were not of that description, and were not contemplated by the act of Congress as of that character; and, consequently, that the act could be considered as only appointing commissioners for the purposes mentioned in it by official instead of personal descriptions, which positions the judges of the court were at liberty to accept or decline.
In a note prepared by Chief Justice Taney, under the direction of this court, and found in 13 How. 51, 52, an account is given of Todd's case, which also involved the validity of the act of 1792, so far as it imposed upon the Circuit Courts duties relating to pensions. And it is there stated that Chief Justice Jay and Justice Cushing, upon further reflection, became satisfied that the power conferred by the act of 1792 on the Circuit Court as a court could not be construed as giving such power to the judges of the court as commissioners.
The same general principles were announced in Ferreira's case, which arose under the treaty of 1819 between Spain and *482 the United States, and under certain acts of Congress passed to carry a particular article of that treaty into execution. The case came before this court upon appeal from a decision or award made by the district judge, acting upon a special statute authorizing him to receive and adjudicate certain claims. A motion to dismiss the appeal for want of jurisdiction in this court raised the question whether the district judge exercised judicial power, strictly speaking, under the Constitution. The motion to dismiss was sustained. Chief Justice Taney, referring to the statutes under which the district judge proceeded, said: "It is manifest that this power to decide upon the validity of these claims is not conferred on them as a judicial function to be exercised in the ordinary forms of a court of justice. For there is to be no suit; no parties in the legal acceptance of the term are to be made; no process to issue; and no one is authorized to appear in behalf of the United States, or to summon witnesses in the case. The proceeding is altogether ex parte, and all that the judge is required to do is to receive the claim when the party presents it, and to adjust it upon such evidence as he may have before him, or be able himself to obtain. But neither the evidence nor his award are to be filed in the court in which he presides, nor recorded there; but he is required to transmit both the decision and the evidence upon which he decided to the Secretary of the Treasury; and the claim is to be paid if the Secretary thinks it just and equitable, but not otherwise. It is to be a debt from the United States upon the decision of the Secretary, but not upon that of the judge. It is too evident for argument on the subject that such a tribunal is not a judicial one, and that the act of Congress did not intend to make it one. The authority conferred on the respective judges was nothing more than that of a commissioner to adjust certain claims against the United States; and the office of judges and their respective jurisdictions are referred to in the law merely as a designation of the persons to whom the authority is confided, and the territorial limits to which it extends. The decision is not the judgment of a court of justice. It is the award of a commission." 13 How. 40, 46, 47.
*483 It thus appears that the act of 1792, above referred to, attempted to impose upon the courts of the United States duties purely administrative in their character. So, also, the acts of Congress involved in Ferreira's case conferred no authority upon the district judge to determine finally any questions of a judicial nature, and, without requiring any petition to be filed, and without empowering the district attorney to enter an appearance for the United States, so as to make it a party to the proceeding, or to authorize a judgment against it, gave that officer the power only of adjusting, without the presence of parties, certain claims, the allowance and payment of which, after being so adjusted, were made to depend wholly upon the discretion of the Secretary of the Treasury.
Some allusion should be made in this connection to Gordon v. United States, 117 U.S. 697, and In re Sanborn, 148 U.S. 222.
In Gordon's case, the question was whether this court had jurisdiction to review the action of the Court of Claims in respect to a claim examined and allowed in the latter court under an act of Congress, 12 Stat. 765, c. 92, §§ 5, 7, 14, which, among other things, provided that no money should be paid out of the Treasury for any claim passed upon by the Court of Claims, until after an appropriation therefor should be estimated by the Secretary of the Treasury, and an appropriation to pay it be made by Congress. Under that act neither the Court of Claims nor this court could do anything more than certify their opinion to the Secretary of the Treasury, and it depended upon that officer, in the first place, to decide whether he would include it in his estimates of private claims, and if he decided in favor of the claimant, it rested with Congress to determine whether it would or would not make an appropriation for its payment. Neither the Court of Claims nor this court could, by any process, enforce its judgment; and whether the claim was paid or not, did not depend on the decision of either court, but upon the future action of the Secretary of the Treasury and of Congress.
The appeal of Gordon was dismissed upon the ground that Congress could not "authorize or require this court to express *484 an opinion on a case where its judicial power could not be exercised, and where its judgment would not be final and conclusive upon the rights of the parties, and process of execution awarded to carry it into effect." "The award of execution," said Chief Justice Taney, "is a part, and an essential part, of every judgment, passed by a court exercising judicial power. It is no judgment, in the legal sense of the term, without it. Without such an award the judgment would be inoperative and nugatory, leaving the aggrieved party without a remedy. It would be merely an opinion which would remain a dead letter, and without any operation upon the rights of the parties, unless Congress should at some future time sanction it, and pass a law authorizing the court to carry its opinion into effect. Such is not the judicial power confided to this court in the exercise of its appellate jurisdiction; yet it is the whole power that the court is allowed to exercise under this act of Congress." p. 702. See De Groot v. United States, 5 Wall. 419.
In Sanborn's case, above cited, the same principles were announced. That case arose under an act of Congress of March 3, 1887, 24 Stat. 505, c. 505, one section of which provided that "when any claim or matter may be pending in any of the executive departments which involves controverted questions of fact or law, the head of such department, with the consent of the claimant, may transmit the same, with the vouchers, papers, proofs, and documents pertaining thereto, to said Court of Claims, and the same shall be there proceeded in under such rules as the court may adopt. When the facts and conclusions of law shall have been found, the court shall report its findings to the department by which it was transmitted." § 12. This court dismissed an appeal from a finding of the Court of Claims, under this act. Referring to the cases of Hayburn, Todd, Ferreira, and Gordon, above cited, it observed: "Such a finding is not made obligatory on the department to which it is reported certainly not so in terms and not so, as we think, by any necessary implication. We regard the function of the Court of Claims, in such a case, as ancillary and advisory only. The finding or conclusion *485 reached by that court is not enforceable by any process of execution issuing from the court, nor is it made by the statute the final and indisputable basis of action either by the department or by Congress." p. 226.
The views we have expressed in the present case are not inconsistent with anything said or decided in those cases. They do not, in any manner, infringe upon the salutary doctrine that Congress (excluding the special cases provided for in the Constitution, as, for instance, in section two of article two of that instrument) may not impose upon the courts of the United States any duties not strictly judicial. The duties assigned to the Circuit Courts of the United States by the twelfth section of the Interstate Commerce Act are judicial in their nature. The inquiry whether a witness before the Commission is bound to answer a particular question propounded to him, or to produce books, papers, etc., in his possession and called for by that body, is one that cannot be committed to a subordinate administrative or executive tribunal for final determination. Such a body could not, under our system of government, and consistently with due process of law, be invested with authority to compel obedience to its orders by a judgment of fine or imprisonment. Except in the particular instances enumerated in the Constitution, and considered in Anderson v. Dunn, 6 Wheat. 204, and in Kilbourn v. Thompson, 103 U.S. 168, 190, of the exercise by either house of Congress of its right to punish disorderly behavior upon the part of its members, and to compel the attendance of witnesses, and the production of papers in election and impeachment cases, and in cases that may involve the existence of those bodies, the power to impose fine or imprisonment in order to compel the performance of a legal duty imposed by the United States, can only be exerted, under the law of the land, by a competent judicial tribunal having jurisdiction in the premises. See Whitcomb's Case, 120 Mass. 118, and authorities there cited.
Without the aid of judicial process of some kind, the regulations that Congress may establish in respect to interstate commerce cannot be adequately or efficiently enforced. One *486 mode, as already suggested, the validity of which is not questioned, of compelling a witness to testify before the Interstate Commerce Commission, to answer questions propounded to him relating to the matter under investigation and which the law makes it his duty to answer, and to produce books, papers, etc., is to make his refusal to appear and answer, or to produce the documentary evidence called for, an offence against the United States punishable by fine or imprisonment. A criminal prosecution of the witness under such a statute, it is conceded, would be a case or controversy within the meaning of the Constitution, of which a court of the United States could take jurisdiction. Another mode would be to proceed by information to recover any penalty imposed by the statute. A proceeding of that character, it is also conceded, would be a case or controversy of which a court of the United States could take cognizance. If, however, Congress, in its wisdom, authorizes the Commission to bring before a court of the United States for determination the issues between it and a witness, that mode of enforcing the act of Congress, and of compelling the witness to perform his duty, is said not to be judicial, and is beyond the power of Congress to prescribe.
We cannot assent to any view of the Constitution that concedes the power of Congress to accomplish a named result, indirectly, by particular forms of judicial procedure, but denies its power to accomplish the same result, directly, and by a different proceeding judicial in form. We could not do so without denying to Congress the broad discretion with which it is invested by the Constitution of employing all or any of the means that are appropriate or plainly adapted to an end which it has unquestioned power to accomplish, namely, the protection of interstate commerce against improper burdens and discriminations. Indeed, of all the modes that could be constitutionally prescribed for the enforcement of the regulations embodied in the Interstate Commerce Act, that provided by the 12th section is the one which, more than any other, will protect the public against the devices of those who, taking advantage of special circumstances, or by means of combinations too powerful to be resisted and overcome by individual *487 effort, would subject commerce among the States to unjust and unreasonable burdens.
The present proceeding is not merely ancillary and advisory. It is not, as in Gordon's case, one in which the United States seeks from the Circuit Court of the United States an opinion that "would remain a dead letter, and without any operation upon the rights of the parties." The proceeding is one for determining rights arising out of specified matters in dispute that concern both the general public and the individual defendants. It is one in which a judgment may be rendered that will be conclusive upon the parties until reversed by this court. And that judgment may be enforced by the process of the Circuit Court. Is it not clear that there are here parties on each side of a dispute involving grave questions of legal rights, that their respective positions are defined by pleadings, and that the customary forms of judicial procedure have been pursued? The performance of the duty which, according to the contention of the government, rests upon the defendants, cannot be directly enforced except by judicial process. One of the functions of a court is to compel a party to perform a duty which the law requires at his hands. If it be adjudged that the defendants are, in law, obliged to do what they have refused to do, that determination will not be merely ancillary and advisory, but, in the words of Sanborn's case, will be a "final and indisputable basis of action," as between the Commission and the defendants, and will furnish a precedent in all similar cases. It will be as much a judgment that may be carried into effect by judicial process as one for money, or for the recovery of property, or a judgment in mandamus commanding the performance of an act or duty which the law requires to be performed, or a judgment prohibiting the doing of something which the law will not sanction. It is none the less the judgment of a judicial tribunal dealing with questions judicial in their nature, and presented in the customary forms of judicial proceedings, because its effect may be to aid an administrative or executive body in the performance of duties legally imposed upon it by Congress in execution of a power granted by the Constitution.
*488 This view is illustrated by the case of Fong Yue Ting v. United States, 149 U.S. 698, 728, which arose under the act of May 5, 1892, c. 60, prohibiting the coming of Chinese persons into the United States. That act provided for the arrest and removal from the United States of any person of Chinese descent unlawfully within this country, unless such person shall establish, by affirmative proof, to the satisfaction of a justice, judge, or commissioner of the United States before whom he might be brought and tried, his lawful right to remain in the United States. It also authorized the arrest of such person by any customs official, collector of internal revenue, or United States marshal, and taken before a United States judge. This court said: "When, in the form prescribed by law, the executive officer, acting in behalf of the United States, brings the Chinese laborer before the judge, in order that he may be heard, and the facts upon which depends his right to remain in the country be decided, a case is duly submitted to the judicial power; for here are all the elements of a civil case a complainant, defendant, and a judge actor, reus et judex. 3 Bl. Com. 25; Osborn v. Bank of the United States, 9 Wheat. 738, 819. No formal complaint or pleadings are required, and the want of them does not affect the authority of the judge or the validity of the statute."
Another suggestion thrown out in argument against the validity of the twelfth section of the Interstate Commerce Act, in the particular adverted to, is that the defendants are not accorded a right of trial by jury. If, as we have endeavored to show, this proceeding makes a case or controversy within the judicial power of the United States, the issue whether the defendants are under a duty to answer the questions propounded to them, and to produce the books, papers, documents, etc., called for, is manifestly not one for the determination of a jury. The issue presented is not one of fact, but of law exclusively. In such a case, the defendant is no more entitled to a jury than is a defendant in a proceeding by mandamus to compel him, as an officer, to perform a ministerial duty. Of course, the question of punishing the defendants for contempt could not arise before the Commission; *489 for, in a judicial sense, there is no such thing as contempt of a subordinate administrative body. No question of contempt could arise until the issue of law, in the Circuit Court, is determined adversely to the defendants and they refuse to obey, not the order of the commission, but the final order of the court. And, in matters of contempt, a jury is not required by "due process of law." From the very nature of their institution, and that their lawful judgments may be respected and enforced, the courts of the United States possess the power to punish for contempt. And this inherent power is recognized and enforced by a statute expressly authorizing such courts to punish contempts of their authority when manifested by disobedience of their lawful writs, process, orders, rules, decrees, or commands. Rev. Stat. § 725; 1 Stat. 83; 4 Stat. 487; United States v. Hudson, 7 Cranch, 32; Anderson v. Dunn, 6 Wheat. 204, 227; Ex parte Robinson, 19 Wall. 505, 510; Ex parte Terry, 128 U.S. 289, 302, 303; Cartwright's Case, 114 Mass. 230, 238. Surely it cannot be supposed that the question of contempt of the authority of a court of the United States, committed by a disobedience of its orders, is triable, of right, by a jury.
We are of opinion that a judgment of the Circuit Court of the United States determining the issues presented by the petition of the Interstate Commerce Commission, and by the answers of the appellees, will be a legitimate exertion of judicial authority in a case or controversy to which, by the Constitution, the judicial power of the United States extends. A final order by that court dismissing the petition of the Commission, or requiring the appellees to answer the questions propounded to them, and to produce the books, papers, etc., called for, will be a determination of questions upon which a court of the United States is capable of acting and which may be enforced by judicial process. If there is any legal reason why appellees should not be required to answer the questions put to them, or to produce the books, papers, etc., demanded of them, their rights can be recognized and enforced by the court below when it enters upon the consideration of the merits of the questions presented by the petition.
*490 In view of the conclusion reached upon the only question determined by the Circuit Court, what judgment shall be here entered? The case was heard below upon the petition of the Commission and the answers of the defendants. But no ruling was made in respect to the materiality of the evidence sought to be obtained from the defendants. Passing by every other question in the case, the Circuit Court, by its judgment, struck down so much of the twelfth section as authorized or required the courts to use their process in aid of inquiries before the Commission. Under the circumstances, we do not feel obliged to go further at this time than to adjudge, as we now do, that that section in the particular named is constitutional, and to remand the cause that the court below may proceed with it upon the merits of the questions presented by the petition and the answers of the defendants and make such determination thereof as may be consistent with law. Any other course would, it might be apprehended, involve the exercise of original jurisdiction, and might possibly work injustice to one or the other of the parties.
For the reasons stated the judgment is reversed, and the cause is remanded for further proceedings in conformity with this opinion.
MR. CHIEF JUSTICE FULLER, MR. JUSTICE BREWER, and MR. JUSTICE JACKSON dissented.[1]
MR. JUSTICE FIELD was not present at the argument of this case, and took no part in the consideration and decision of it.
NOTES
[1] The dissenting opinion, by Mr. Justice Brewer, had not been filed when this volume went to press. It will appear in Vol. 155. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/94385/ | 161 U.S. 306 (1896)
DURLAND
v.
UNITED STATES. SAME
v.
SAME.
Nos. 528, 529.
Supreme Court of United States.
Argued October 29, 1895.
Decided March 2, 1896.
ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
*312 Mr. James M. Beck and Mr. Hampton L. Carson for plaintiff in error. Mr. William F. Harrity was on their brief.
Mr. Assistant Attorney General Whitney and Mr. John L. Thomas, Assistant Attorney General for the Post Office Department, for the defendants in error.
MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court.
Inasmuch as the testimony has not been preserved, we must assume that it was sufficient to substantiate the charges in the indictments; that this was a scheme and artifice to defraud, and that the defendant did not intend that the bonds should mature, or that although money was received any should be returned, but that it should be appropriated to his own use. In other words, he was trying to entrap the unwary, and to secure money from them on the faith of a scheme glittering and attractive in form, yet unreal and deceptive in fact, and known to him to be such. So far as the moral element is concerned it must be taken that the defendant's guilt was established.
But the contention on his part is that the statute reaches only such cases as, at common law, would come within the definition of "false pretences," in order to make out which there must be a misrepresentation as to some existing fact and not a mere promise as to the future. It is urged that there was no misrepresentation as to the existence or solvency of the corporation, the Provident Bond and Investment Company, or as to its modes of doing business, no suggestion that it failed to issue its bonds to any and every one advancing the required dues, or that its promise of payment according to the conditions named in the bond was not a valid and binding promise. And then, as counsel say in their brief, "it [the indictment] discloses on its face absolutely nothing but an intention *313 to commit a violation of a contract. If there be one principle of criminal law that is absolutely settled by an overwhelming avalanche of authority it is that fraud either in the civil courts or in the criminal courts must be the misrepresentation of an existing or a past fact, and cannot consist of the mere intention not to carry out a contract in the future."
The question thus presented is one of vital importance, and underlies both cases. We cannot agree with counsel. The statute is broader than is claimed. Its letter shows this: "Any scheme or artifice to defraud." Some schemes may be promoted through mere representations and promises as to the future, yet are none the less schemes and artifices to defraud. Punishment because of the fraudulent purpose is no new thing. As said by Mr. Justice Brown, in Evans v. United States, 153 U.S. 584, 592, "if a person buy goods on credit in good faith, knowing that he is unable to pay for them at the time, but believing that he will be able to pay for them at the maturity of the bill, he is guilty of no offence even if he be disappointed in making such payment. But if he purchases them, knowing that he will not be able to pay for them, and with an intent to cheat the vendor, this is a plain fraud, and made punishable as such by statutes in many of the States."
But beyond the letter of the statute is the evil sought to be remedied, which is always significant in determining the meaning. It is common knowledge that nothing is more alluring than the expectation of receiving large returns on small investments. Eagerness to take the chances of large gains lies at the foundation of all lottery schemes, and, even when the matter of chance is eliminated, any scheme or plan which holds out the prospect of receiving more than is parted with appeals to the cupidity of all.
In the light of this the statute must be read, and so read it includes everything designed to defraud by representations as to the past or present, or suggestions and promises as to the future. The significant fact is the intent and purpose. The question presented by this indictment to the jury was not, as counsel insist, whether the business scheme suggested in this bond was practicable or not. If the testimony had shown *314 that this Provident company, and the defendant, as its president, had entered in good faith upon that business, believing that out of the moneys received they could by investment or otherwise make enough to justify the promised returns, no conviction could be sustained, no matter how visionary might seem the scheme. The charge is that in putting forth this scheme it was not the intent of the defendant to make an honest effort for its success, but that he resorted to this form and pretence of a bond without a thought that he or the company would ever make good its promises. It was with the purpose of protecting the public against all such intentional efforts to despoil, and to prevent the post office from being used to carry them into effect, that this statute was passed; and it would strip it of value to confine it to such cases as disclose an actual misrepresentation as to some existing fact, and exclude those in which is only the allurement of a specious and glittering promise. This, which is the principal contention of counsel, must be overruled.
The second, which applies more fully to the first than the second case, is that the indictment is defective in that it avers that in pursuance of this fraudulent scheme twenty letters and circulars were deposited in the post office, without in any way specifying the character of those letters or circulars. It is contended that the indictment should either recite the letters, or at least by direct statements show their purpose and character, and that the names and addresses of the parties to whom the letters were sent should also be stated, so as to inform the defendant as to what parts of his correspondence the charge of crime is made, and also to enable him to defend himself against a subsequent indictment for the same transaction. These objections were raised by a motion to quash the indictment, but such a motion is ordinarily addressed to the discretion of the court, and a refusal to quash is not, generally, assignable for error. Logan v. United States, 144 U.S. 263, 282.
Further, the omission to state the names of the parties intended to be defrauded and the names and addresses on the letters is satisfied by the allegation, if true, that such names and addresses are to the grand jury unknown. And parol evidence *315 is always admissible, and sometimes necessary, to establish the defence of prior conviction or acquittal. Dunbar v. United States, 156 U.S. 185, 191.
It may be conceded that the indictment would be more satisfactory if it gave more full information as to the contents or import of these letters, so that upon its face it would be apparent that they were calculated or designed to aid in carrying into execution the scheme to defraud. But still we think that as it stands it must be held to be sufficient. There was a partial identification of the letters by the time and place of mailing, and the charge was that defendant "intending in and for executing such scheme and artifice to defraud and attempting so to do, placed and caused to be placed in the post office," etc. This, it will be noticed, is substantially the language of the statute. If defendant had desired further specification and identification, he could have secured it by demanding a bill of particulars. Rosen v. United States, 161 U.S. 29.
We do not wish to be understood as intimating that in order to constitute the offence it must be shown that the letters so mailed were of a nature calculated to be effective in carrying out the fraudulent scheme. It is enough if, having devised a scheme to defraud, the defendant with a view of executing it deposits in the post office letters, which he thinks may assist in carrying it into effect, although in the judgment of the jury they may be absolutely ineffective therefor.
A final objection is that the indictment in the first case is multifarious because, as claimed, it includes many offences, and In re Henry, 123 U.S. 372, 374, is cited as authority therefor, in which, in reference to a case of this nature, Chief Justice Waite said: "Each letter so taken out or put in constitutes a separate and distinct violation of the act." This objection was not taken until after the verdict, and hence, if of any validity, was presented too late. Connors v. United States, 158 U.S. 408, 411.
These are the only objections which require consideration, and, finding no error in them, the judgment in each of these cases is
Affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2720085/ | Case: 13-10939 Document: 00512741186 Page: 1 Date Filed: 08/21/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-10939 August 21, 2014
Summary Calendar
Lyle W. Cayce
Clerk
ALBERT G. HILL, III, Individually, and as a Beneficiary of the Margaret
Hunt Trust Estate, derivatively on behalf of the Margaret Hunt Trust Estate,
Individually, as a beneficiary of the Haroldson Lafayette Hunt Jr. Trust
Estate and derivately on Behalf of the Haroldson,
Plaintiff – Appellant
v.
WILLIAM SCHILLING, Individually and In His Capacity as a Member of the
Advisory Board MHTE and a Member of the Advisory Board of the HHTE;
IVAN IRWIN, JR.; ALBERT G. HILL, JR.; ALINDA H. WIKERT; LYDA
HILL; HEATHER V. WASHBURNE; ELISA M. SUMMERS; WILLIAM
HERBERT HUNT, In His Capacity as the Personal Representative of the
Estate of Tom Hunt; BRETT RINGLE, Individually and in His Capacity as a
Member of the Advisory Board of the MHTE; MARGARET KELIHER,
Individually and in Her Capacity as Trustee of the MHTE and a Member of
the Advisory Board of the HHTE,
Defendants – Appellees
v.
Campbell Harrison & Dagley, L.L.P.; Calloway, Norris, Burdette, & Weber,
P.L.L.C.,
Intervenors – Appellees
Case: 13-10939 Document: 00512741186 Page: 2 Date Filed: 08/21/2014
No. 13-10939
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:07-CV-2020
Before SMITH, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Albert G. Hill III (“Hill”) appeals the district court’s denial of his motion
to enforce the settlement agreement and compel production of copies of the
books and records. For the following reasons, we AFFIRM.
FACTS AND PROCEEDINGS
In 1935, H.L. Hunt formed irrevocable trusts for six of his children. Two
of those trusts give rise to this lawsuit: the Margaret Hunt Trust Estate
(“MHTE”) and the Haroldson L. Hunt, Jr. Trust Estate (“HHTE”). The Articles
of Agreement and Declaration of Trust creating each of the MHTE and the
HHTE were essentially identical.
Margaret Hunt Hill was the beneficiary of the MHTE. Ordinarily the
MHTE would pass to Margaret’s three children. But before her death her son,
Albert G. Hill Jr. (“Hill Jr.”), executed an instrument disclaiming his interest
to his three children, including Hill. Hill Jr. later rescinded the disclaimer,
purporting he was incompetent when he signed the disclaimer in 2005 and an
“updated” disclaimer in 2007.
On November 8, 2007 Hill filed a suit in Texas state court against his
father, Hill Jr., alleging that he and others committed violations of the federal
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 13-10939
Racketeer Influenced and Corrupt Organizations Act (“RICO”), fraud, breach
of fiduciary duty, and other torts in connection with the MHTE and HHTE.
Hill sought different forms of relief, including enforcement of his father’s
disclaimer, a declaration that he was a beneficiary of both the MHTE and
HHTE, monetary damages, and an accounting of both trusts. The Defendants,
Hill Jr. and the others associated with the RICO claims, removed the action to
the United States District Court for the Northern District of Texas.
During the almost three years of litigation, in which exhaustive
discovery occurred, the MHTE’s trustee produced thousands of financial and
accounting documents. After years of litigation, Hill and the former MHTE
and HHTE trustees entered into a written Global Settlement and Mutual
Release Agreement (“settlement agreement”), filed with the district court on
May 14, 2010. The settlement agreement divided the MHTE, pro rata, into
separate sub-trusts for all beneficiaries, including Hill. Each sub-trust was to
be separately administered by a new successor trustee; the successor trustees
were to administer according to the 1935 Articles of Agreement of the MHTE.
The Articles of Agreement of the MHTE state the duties of the trustee,
who, among other things, is required to
keep, or cause to be kept, faithful records and books of account,
reflecting at all times the true conditions of the affairs of said
Trust Estate, which said records and books of account shall at
all times be open for the inspection of the other two members
of the Advisory Board, and as near after the close of each
calendar year as is reasonably possible the Trustee shall have
said books and records audited by a Certified Public
Accountant and a report of said audit files as a part of the
archives and permanent records of said Trust Estate . . . .
Further, the Articles state that when a trustee is replaced, the successor
trustee “shall succeed to the same rights and powers and be subject to the same
duties and liabilities of his predecessor.”
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No. 13-10939
The settlement agreement does not require the former MHTE trustees
to hand over any additional MHTE documents to any beneficiary or successor
trustee of the MHTE New Hunt Trusts, and specifically prohibits the successor
trustees from investigating the prior management of the MHTE trustees.
Before the district court entered its final judgment, both parties submitted
final judgment proposals. Hill attempted to add new terms to the agreement.
Namely, he sought to have the agreement require the MHTE trustee and
advisory board members to grant complete access to MHTE’s books and records
for inspection by Hill and/or his representatives. In November 2010, the
district court approved the settlement agreement, rejected Hill’s new terms,
adopted a provision prohibiting any new trustees from investigating past
conduct, provided for broad general mutual releases, and entered final
judgment.
In December 2010, the former trustees of the MHTE divided the MHTE
into separate trusts in accordance with the settlement agreement and final
judgment. After the district court rejected Hill’s request to alter or amend the
final judgment to request the former MHTE trustees to give an accounting for
the period of May to December 2010, Hill filed an appeal to this court alleging
that the final judgment differed from the settlement agreement. In the
meantime, Hill learned that the district judge, who presided over the case since
2007, had an undisclosed conflict of interest due to his wife’s ownership of stock
in ExxonMobil Corporation. Hill moved to recuse this judge in March 2012.
The district court denied this motion, and Hill appealed the denial to this court.
This court consolidated the two issues and affirmed the district court.
While the previous appeal was pending, Hill filed a motion to enforce the
final judgment and to compel the transfer of books and records of the former
MHTE to successor trustees or, in the alternative, for relief from final
judgment under Rule 60(b) in the district court. Hill admitted that this motion,
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No. 13-10939
filed before his motion to recuse the district judge, was aimed at obtaining
copies of the books and records of Hunt Petroleum, an entity later acquired by
Exxon. His motions were thus aimed at uncovering evidence in support of his
recusal motion. His motion to enforce final judgment also contradicted his
previous position, that the final judgment did not grant him access to inspect
the MHTE books and records. The motion to enforce and compel was denied
by a magistrate judge, due to the pending motion to recuse. The case was
reassigned to a second district judge, who also rejected Hill’s objections to the
magistrate judge’s ruling, finding that neither the settlement agreement nor
the final judgment required the production of books and records of the former
MHTE for inspection. The court emphasized that the initial district judge had
previously rejected adding Hill’s provision to require the accounting or
inspection rights to the final judgment. He also denied Hill’s alternative
request under Federal Rule of Civil Procedure 60(b). After the issuance of this
order, the second district judge recused himself sua sponte.
Hill appeals the denial of the motion to enforce and compel and files a
complaint speculating about the second district judge’s reason for recusing
himself after denying Hill’s motion to enforce and compel.
STANDARD OF REVIEW
The principal issue on appeal is whether the successor trustees have a
right to obtain copies of the “archives and permanent records” of the MHTE
based on the MHTE’s Articles of Agreement, the settlement agreement, and
the final judgment. Trust agreements and settlement agreements are
interpreted as contracts. Goldin v. Bartholow, 166 F.3d 710, 715 (5th Cir.
1999); In re Raymark Indus., Inc., 831 F.2d 550, 553 (5th Cir. 1987). The
construction of an unambiguous contract is a question of law, which we review
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No. 13-10939
de novo. Guidry v. Halliburton Geophysical Servs., Inc., 976 F.2d 938, 940 (5th
Cir. 1992).
To determine whether reversal or vacation of a district judge’s sua sponte
recusal is necessary, we consider the risk (1) of injustice to the parties in this
case; (2) that denial of relief will create injustice in other cases; and (3) of
undermining the public’s confidence in the judicial process. Patterson v. Mobil
Oil Corp., 335 F.3d 476, 485 (5th Cir. 2003).
DISCUSSION
I. Right to Access and Copy Records
Appellees, the former MHTE and HHTE trustees, contend that the
waiver doctrine precludes Hill from appealing the district court’s denial of his
motion to enforce and compel. “The [waiver] doctrine promotes procedural
efficiency and ‘prevents the bizarre result that a party who has chosen not to
argue a point on a first appeal should stand better as regards the law of the
case than one who had argued and lost.’” Lindquist v. City of Pasadena, 669
F.3d 225, 239-40 (5th Cir. 2012).
As noted above, Hill requested that complete access to the MHTE’s books
and records be added as a term to the settlement agreement. The district court
rejected Hill’s proposed amendment and entered final judgment, which we
affirmed in Hill’s first appeal. To the extent that Hill’s appeal argues that the
right to have access to the documents should have been included in the final
judgment, or that it was contemplated in the settlement agreement, his
argument is waived.
But Hill restyles the current appeal as one challenging the district
court’s denial of his motion to enforce and compel the final judgment. While
his prior appeal argued that a right to access the documents was wrongfully
excluded from the settlement agreement, he now contends that the right to
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No. 13-10939
inspect and have access to the books is part of the agreement, and that he is
merely seeking enforcement of the final judgment. As such, the waiver
doctrine does not preclude Hill’s current appeal. Nonetheless, Hill’s challenges
to the district court’s denial of his motion to enforce and compel are without
merit.
We hold that Hill cannot now claim that a provision granting him access
to the MHTE books and records is part of the agreement because such a
provision was not actually contemplated by the parties. “As long as the
[settlement and trust] as a whole [are] coherent, ambiguities can be resolved
as a matter of law, without looking beyond the four corners of the document.”
Carpenters Amended and Restated Health Benefit Fund v. Holleman Constr.
Co., 751 F.2d 763, 766 (5th Cir. 1985). The duty of the MHTE trustee to keep
books and records was extended to the MHTE successor trustees, as stated in
plain language from the MHTE Articles of Agreement. But there is no express
language that indicates that the successor trustee must be given the same set
of books, records, and archives maintained by the former trustees. Nothing in
the record indicates that the parties think that the agreement is ambiguous on
this point. Indeed, that Hill tried to add a provision granting him access to
MHTE’s books and records is evidence that he knew such a provision was not
part of the final judgment and settlement agreement as written.
Hill contends that Texas law mandates his ability to access MHTE’s
books and records. Texas statutory law does not require such a result. Hill
relies on a section of the Texas code that states that “[u]nless otherwise
provided in the trust instrument or by order of the court appointing a successor
trustee, the successor trustee has the rights, powers, authority, discretion, and
title to trust property conferred on the trustee.” Tex. Prop. Code § 113.084.
But he does not cite to any authority to support his position that courts
interpret this statutory language to compel his access to MHTE documents on
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No. 13-10939
these facts. And even accepting Hill’s interpretation of Texas law, the district
court “otherwise provided” that Hill would not be able to access MHTE’s
documents by entering final judgment on a settlement agreement that
consciously excluded such a right.
Finally, Hill cites to Texas Property Code § 112.057, arguing that Texas
law permits a trustee to divide a trust only if the terms of the separate trusts
are identical to the terms of the original trust. It follows, he claims, that
because the former trustees had access to these records, the successor trustees
should also have access because the successor trustees step into the role of the
former trustees. This argument fails. First, Hill downplays the amount of
documents received during discovery, including financial statements from
KPMG. Second, the statutory language crucial to Hill’s argument is not found
in the applicable 2010 version of § 112.057. The language he relied on, that
“the terms of the separate trusts must be identical to the terms of the original
trust” is not present in the relevant 2010 version of Texas Property Code
§ 112.057, but rather was part of the 2005 version. Finally, § 112.054(b)
provides that “[t]he court shall exercise its discretion to order a modification or
termination . . . in the manner that most conforms as nearly as possible to the
probable intention of the settlor.” This section also does not expressly state or
infer that the MHTE Articles of Agreement require the former trustees to give
the successor trustees access to the permanent records. Because Texas law
does not require a different result, we decline to modify the district court’s final
judgment enforcing a settlement agreement that consciously excluded Hill’s
right to access MHTE’s books and records.
II. Recusal and Undisclosed Conflict
In the alternative, Hill contends that because the second district judge
recused himself two months after his only substantive ruling, and because no
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No. 13-10939
new parties or causes of action were added, the judge’s conflict existed at the
time of his order. Hill argues that we should remand the case because his
recusal following his substantive order meant that he made his ruling under
an “undisclosed conflict.” We disagree.
First, Hill does not even attempt to identify what the conflict could be,
or why we should doubt the validity of his order. He recused himself sua sponte
under 28 U.S.C. § 455(b)(4), and followed the standard practice of not
disclosing his reason for recusal. We decline Hill’s invitation to speculate as to
why the judge recused himself, and when his “undisclosed conflict” first arose.
Second, “we do not automatically vacate the rulings issued after [the judge]
should have recused himself.” Patterson, 335 F.3d at 485. Even if the district
judge was operating under a conflict, it still would not have an effect on the
denial of Hill’s motion because two judges prior to him had issued the same
order.
CONCLUSION
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
9 | 01-03-2023 | 08-22-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/94981/ | 172 U.S. 576 (1899)
UNITED STATES
v.
DUELL.
No. 444.
Supreme Court of United States.
Argued December 1, 2, 1898.
Decided January 23, 1899.
ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.
*581 Mr. Julian C. Dowell and Mr. George C. Hazelton for plaintiffs in error.
Mr. Solicitor General for defendant in error. Mr. Jeremiah M. Wilson, on behalf of Northall's assignee, filed a brief for same.
MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.
The Court of Appeals for the District of Columbia adjudged that Northall was entitled to the patent. By section 8 of the act establishing that court, 27 Stat. 434, c. 74, it is provided that any final judgment or decree thereof may be revised by this court on appeal or error in cases wherein the validity of a statute of the United States is drawn in question. The validity of the act of Congress allowing an appeal to the Court of Appeals in interference cases was necessarily determined when that court went to judgment, yet no attempt was made to bring the case directly to this court, but the relator applied to the District Supreme Court to compel the Commissioner to issue the patent in disregard of the judgment of the Court of Appeals to the contrary, and, the application having been denied, the Court of Appeals was called on to readjudicate the question of its own jurisdiction.
The ground of this unusual proceeding, by which the lower court was requested to compel action to be taken in defiance *582 of the court above, and the latter court was called on to rejudge its own judgment, was that the decree of the Court of Appeals was utterly void because of the unconstitutionality of the statute by which it was empowered to exercise jurisdiction.
Nothing is better settled than that the writ of mandamus will not ordinarily be granted if there is another legal remedy, nor unless the duty sought to be enforced is clear and indisputable; and we think that, under the circumstances, the remedy by appeal existed; and that it is not to be conceded that it was the duty of the Commissioner to disobey the decree because in his judgment the statute authorizing it was unconstitutional, or that it would have been consistent with the orderly and decorous administration of justice for the District Supreme Court to hold that the Court of Appeals was absolutely destitute of the jurisdiction which it had determined it possessed. Even if we were of opinion that the act of Congress was not in harmony with the Constitution, every presumption was in favor of its validity, and we cannot assent to the proposition that it would have been competent for the Commissioner to treat the original decree as absolutely void, and without force and effect as to all persons and for all purposes.
But as, in our opinion, the Court of Appeals had jurisdiction, we prefer to affirm the judgment on that ground.
The contention is that Congress had no power to authorize the Court of Appeals to review the action of the Commissioner in an interference case, on the theory that the Commissioner is an executive officer; that his action in determining which of two claimants is entitled to a patent is purely executive; and that, therefore, such action cannot be subjected to the revision of a judicial tribunal.
Doubtless, as was said in Murray v. Hoboken Land & Improvement Co., 18 How. 272, 284, Congress cannot bring under the judicial power a matter which, from its nature, is not a subject for judicial determination, but at the same time, as Mr. Justice Curtis, delivering the opinion of the court, further observed, "there are matters involving public *583 rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which Congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper." The instances in which this has been done are numerous, and many of them are referred to in Fong Yue Ting v. United States, 149 U.S. 698, 714, 715, 728.
Since, under the Constitution, Congress has power "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries," and to make all laws which shall be necessary and proper for carrying that expressed power into execution, it follows that Congress may provide such instrumentalities in respect of securing to inventors the exclusive right to their discoveries as in its judgment will be best calculated to effect that object.
And by reference to the legislation on the subject, a comprehensive sketch of which was given by Mr. Justice Matthews in Butterworth v. Hoe, 112 U.S. 50, it will be seen that from 1790 Congress has selected such instrumentalities, varying them from time to time, and, since 1870, has asserted the power to avail itself of the courts of the District of Columbia in that connection.
The act of April 10, 1790, c. 7, 1 Stat. 109, authorized the issue of patents by the Secretary of State, the Secretary for the Department of War, and the Attorney General, or any two of them, "if they shall deem the invention or discovery sufficiently useful and important," and this was followed by the act of February 21, 1793, c. 11, 1 Stat. 318, authorizing them to be issued by the Secretary of State, upon the certificate of the Attorney General that they were conformable to the act. The ninth section of the statute provided for the case of interfering applications, which were to be submitted to the decision of three arbitrators, chosen one by each of the parties and the third appointed by the Secretary of State, whose decision or award, or that of two of them, should be final as respected the granting of the patent.
Then came the act of July 4, 1836, c. 357, 5 Stat. 117, creating *584 in the Department of State the Patent Office, "the chief officer of which shall be called the Commissioner of Patents," and "whose duty it shall be, under the direction of the Secretary of State, to superintend, execute and perform, all such acts and things touching and respecting the granting and issuing of patents for new and useful discoveries, inventions and improvements, as are herein provided for, or shall hereafter be, by law, directed to be done and performed." ... By that act it was declared to be the duty of the Commissioner to issue a patent if he "shall deem it to be sufficiently useful and important;" and, in case of his refusal, the applicant was (sec. 7) secured an appeal from his decision to a board of examiners, to be composed of three disinterested persons, appointed for that purpose by the Secretary of State, one of whom, at least, to be selected, if practicable and convenient, for his knowledge and skill in the particular art, manufacture or branch of science to which the alleged invention appertained. The decision of this board being certified to the Commissioner, it was declared that "he shall be governed thereby in the further proceedings to be had on such application." A like proceeding, by way of appeal, was provided in cases of interference. By section 16 of the act a remedy by bill in equity, still existing in sections 4915, 4918, Revised Statutes, was given as between interfering patents or whenever an application had been refused on an adverse decision of a board of examiners. By section 11 of the act of March 3, 1839, c. 88, 5 Stat. 353, 354, as modified by the act of August 30, 1852, c. 107, 10 Stat. 75, it was provided that in all cases where an appeal was thus allowed by law from the decision of the Commissioner of Patents to a board of examiners, the party, instead thereof, should have a right to appeal to the chief judge or to either of the assistant judges of the Circuit Court of the District of Columbia; and by section 10 the provisions of section 16 of the act of 1836 were extended to all cases where patents were refused for any reason whatever, either by the Commissioner or by the chief justice of the District of Columbia upon appeals from the decision of the Commissioner, as well as where the *585 same shall have been refused on account of or by reason of interference with a previously existing patent.
By the act of March 3, 1849, c. 108, 9 Stat. 395, the Patent Office was transferred to the Department of the Interior. The act of March 2, 1861, c. 88, 12 Stat. 246, created the office of examiners in chief, "for the purpose of securing greater uniformity of action in the grant and refusal of letters patent," "to be composed of persons of competent legal knowledge and scientific ability, whose duty it shall be, on the written petition of the applicant for that purpose being filed, to revise and determine upon the validity of decisions made by examiners when adverse to the grant of letters patent; and also to revise and determine in like manner upon the validity of the decisions of examiners in interference cases, and when required by the Commissioner in applications for the extension of patents, and to perform such other duties as may be assigned to them by the Commissioner; that from their decisions appeals may be taken to the Commissioner of Patents in person, upon payment of the fee hereinafter prescribed; that the said examiners in chief shall be governed in their action by the rules to be prescribed by the Commissioner of Patents."
The act of July 8, 1870, c. 230, 16 Stat. 198, revised, consolidated and amended the statutes then in force on the subject, and by section 48, an appeal to the Supreme Court of the District of Columbia sitting in banc was provided for, whose decision was to govern the further proceedings in the case (sec. 50); and the provisions of the act material to the present inquiry were carried in substance into the existing revision.
By the act of February 9, 1893, c. 74, 27 Stat. 434, the determination of appeals from the Commissioner of Patents, which was formerly vested in the General Term of the Supreme Court of the District, was vested in the Court of Appeals, and, in addition, it was provided that "any party aggrieved by a decision of the Commissioner of Patents in any interference case may appeal therefrom to said Court of Appeals."
As one of the instrumentalities designated by Congress in *586 execution of the power granted, the office of Commissioner of Patents was created, and though he is an executive officer, generally speaking, matters in the disposal of which he exercises functions judicial in their nature may properly be brought within the cognizance of the courts.
Now, in deciding whether a patent shall issue or not, the Commissioner acts on evidence, finds the facts, applies the law and decides questions affecting not only public but private interests; and so as to reissue, or extension or on interference between contesting claimants; and in all this he exercises judicial functions.
In Butterworth v. Hoe, supra, Mr. Justice Matthews, referring to the constitutional provision, well said:
"The legislation based on this provision regards the right of property in the inventor as the medium of the public advantage derived from his invention; so that in every grant of the limited monopoly two interests are involved, that of the public, who are the grantors, and that of the patentee. There are thus two parties to every application for a patent, and more, when, as in case of interfering claims or patents, other private interests compete for preference. The questions of fact arising in this field find their answers in every department of physical science, in every branch of mechanical art; the questions of law, necessary to be applied in the settlement of this class of public and private rights, have founded a special branch of technical jurisprudence. The investigation of every claim presented involves the adjudication of disputed questions of fact, upon scientific or legal principles, and is, therefore, essentially judicial in its character, and requires the intelligent judgment of a trained body of skilled officials, expert in the various branches of science and art, learned in the history of invention, and proceeding by fixed rules to systematic conclusions."
That case is directly in point and the ratio decidendi strictly applicable to that before us. The case was a suit in mandamus brought by the claimant of a patent in whose favor the Commissioner had found in an interference case, to compel the Commissioner to issue the patent to him. The Commissioner *587 had refused to do this on the ground that the defeated party had appealed to the Secretary of the Interior, who had reversed the Commissioner's action, and found in appellant's favor. This court held that while the Commissioner of Patents was an executive officer and subject in administrative or executive matters to the supervision of the head of the department, yet that his action in deciding patent cases was essentially judicial in its nature and not subject to review by the executive head, an appeal to the courts having been provided for. And among other things it was further said:
"It is evident that the appeal thus given to the Supreme Court of the District of Columbia from the decision of the Commissioner, is not the exercise of ordinary jurisdiction at law or in equity on the part of that court, but is one in the statutory proceeding under the patent laws whereby that tribunal is interposed in aid of the Patent Office, though not subject to it. Its adjudication, though not binding upon any who choose by litigation in courts of general jurisdiction to question the validity of any patent thus awarded, is, nevertheless, conclusive upon the Patent Office itself, for, as the statute declares, Rev. Stat. § 4914, it `shall govern the further proceedings in the case.' The Commissioner cannot question it. He is bound to record and obey it. His failure or refusal to execute it by appropriate action would undoubtedly be corrected and supplied by suitable judicial process. The decree of the court is the final adjudication upon the question of right; everything after that dependent upon it is merely in execution of it; it is no longer matter of discretion, but has become imperative and enforceable. It binds the whole Department, the Secretary as well as the Commissioner, for it has settled the question of title, so that a demand for the signatures necessary to authenticate the formal instrument and evidence of grant may be enforced. It binds the Secretary by acting directly upon the Commissioner, for it makes the action of the latter final by requiring it to conform to the decree.
"Congress has thus provided four tribunals for hearing applications for patents, with three successive appeals, in which the Secretary of the Interior is not included, giving jurisdiction *588 in appeals from the Commissioner to a judicial body, independent of the Department, as though he were the highest authority on the subject within it. And to say that under the name of direction and superintendence, the Secretary may annul the decision of the Supreme Court of the District, sitting on appeal from the Commissioner, by directing the latter to disregard it, is to construe a statute so as to make one part repeal another, when it is evident both were intended to coexist without conflict."
* * * * *
"No reason can be assigned for allowing an appeal from the Commissioner to the Secretary in cases in which he is by law required to exercise his judgment on disputed questions of law and fact, and in which no appeal is allowed to the courts that would not equally extend it to those in which such appeals are provided, for all are equally embraced in the general authority of direction and superintendence. That includes all or does not extend to any. The true conclusion, therefore, is, that in matters of this description, in which the action of the Commissioner is quasi-judicial, the fact that no appeal is expressly given to the Secretary is conclusive that none is to be implied."
We perceive no ground for overruling that case or dissenting from the reasoning of the opinion; and as the proceeding in the Court of Appeals on an appeal in an interference controversy presents all the features of a civil case, a plaintiff, a defendant and a judge, and deals with a question judicial in its nature, in respect of which the judgment of the court is final so far as the particular action of the Patent Office is concerned, such judgment is none the less a judgment "because its effect may be to aid an administrative or executive body in the performance of duties legally imposed upon it by Congress in execution of a power granted by the Constitution." Interstate Commerce Commission v. Brimson, 154 U.S. 447.
It will have been seen that in the gradual development of the policy of Congress in dealing with the subject of patents, the recognition of the judicial character of the questions involved became more and more pronounced.
*589 By the acts of 1839 and 1852 an appeal was given, not to the Circuit Court of the District of Columbia, but to the chief judge or one of the assistant judges thereof, who was thus called on to act as a special judicial tribunal. The competency of Congress to make use of such an instrumentality or to create such a tribunal in the attainment of the ends of the Patent Office seems never to have been questioned, and we think could not have been successfully. The nature of the thing to be done being judicial, Congress had power to provide for judicial interference through a special tribunal, United States v. Coe, 155 U.S. 76; and a fortiori existing courts of competent jurisdiction might be availed of.
We agree that it is of vital importance that the line of demarcation between the three great departments of government should be observed, and that each should be limited to the exercise of its appropriate powers, but in the matter of this appeal we find no such encroachment of one department on the domain of another as to justify us in holding the act in question unconstitutional.
Judgment affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1920636/ | 447 N.W.2d 148 (1989)
Barclay SLOAN, Marjorie Sloan, Charlotta Poppen, Margretta Faber, and Mina Sloan, Appellees,
v.
Robert WALLBAUM, Joe Wallbaum, and Myrtle Wallbaum, Appellants.
No. 88-1503.
Court of Appeals of Iowa.
August 23, 1989.
*149 David J. Mansheim of Klinkenborg, Hansmann & Mansheim, Parkersburg, for appellants.
Lee E. Poppen of Knoshaug & Poppen Law Firm, Clarion, for appellees.
Considered by DONIELSON, P.J., and SCHLEGEL and SACKETT, JJ.
SCHLEGEL, Judge.
Defendants appeal a district court judgment ordering them to remove an obstruction to a waterway that altered the natural flow of water from the plaintiffs' estate.
Defendants contend that the court's injunction was improper since the obstruction has not damaged plaintiffs' property but has helped prevent erosion on defendants' land.
Plaintiffs' land lies immediately north of, and is superior in elevation to, defendants' land. Water has drained from plaintiffs' property across defendants' property primarily through a grassy drainage ditch.
In 1985, plaintiffs tiled their land and had the sides of the ditch sloped and the ditch somewhat straightened.
In 1986, the defendants blocked the exit of the drainage ditch by use of a piece of tin and later with the addition of some fill dirt. Defendants claim the blockage was necessary to reduce the erosion caused by plaintiffs' tile and ditch construction in 1985, and it did not damage plaintiffs' land.
The plaintiffs brought this action seeking an injunction to remove the blockage and for monetary damages. No damages were awarded but an injunction to remove the blockage was entered. The defendants have filed this appeal.
This is an equitable action and therefore our review is de novo. Iowa R.App.P. 4. We give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but we are not bound by these determinations. Iowa R.App.P. 14(f)(7).
The law in this case is not disputed. The general rule is that a servient estate cannot block the natural flow of water from the dominant estate. Livingston v. McDonald, 21 Iowa 160, 167 (1866). The evidence is clear that the plaintiffs are the owners of the dominant estate and that the defendants obstructed the flow of water in a naturally occurring drainage ditch from plaintiffs' estate.
Appellants' main contention is that the injunction issued by the court, requiring the appellants to remove the obstruction, was an improper remedy. A court of equity will not resort to the granting of injunctive relief unless it appears there is an invasion or threatened invasion of a right, and that substantial injury will result to the party whose rights are so invaded, or such injury is reasonably to be apprehended. Schmitt v. Kirkpatrick, 245 Iowa 971, 977, 63 N.W.2d 228, 231 (1954). The blockage in this case is only about twelve inches high, but according to the testimony of several witnesses, could possibly flood over five acres of land. The backup of water is already beginning to affect the tile that was placed in the ditch by the appellees. The appellants' own expert testified that a dam only one foot high can make a large difference when the rest of the land is flat, as it is here. The fact that no damage has occurred in the last three years means nothing due to the drought-like conditions. It is inevitable that it will rain and that the appellees will *150 be damaged. The flooding that will result will take several acres of land out of production, thereby causing substantial damage to the appellees. The violation of appellees' rights is clear, the current damage and potential for damage is also clear. The trial court was correct in issuing the injunction.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625574/ | 25 So. 3d 584 (2009)
Louise MASSIE, Petitioner,
v.
PROGRESSIVE EXPRESS INSURANCE COMPANY, Respondent.
No. 1D09-1558.
District Court of Appeal of Florida, First District.
November 17, 2009.
Rehearing Denied January 14, 2010.
*585 Louis K. Rosenbloum, of Louis K. Rosenbloum, P.A., Pensacola, and Arthur A. Shimek, of Arthur A. Shimek, P.A., Pensacola, for Petitioner.
Betsy E. Gallagher and Amy L. Miles, of Kubicki Draper, P.A., Tampa, and James C. Rinaman, III, of Rinaman & Associates, P.A., Jacksonville, for Respondent.
BROWNING, JR., EDWIN B., Senior Judge.
In this second-tier certiorari proceeding our review is limited to whether a "departure from the essential requirements of law" occurred, as a violation of procedural due process is not an issue. See Kaklamanos v. Allstate Ins. Co., 796 So. 2d 555 (Fla. 1st DCA 2001). We conclude such a departure occurred.
The sole issue presented is whether Petitioner's attorney is entitled to a contingency fee multiplier on her attorney's fees award in this personal injury protection ("PIP") action. The Circuit Court on direct appeal reviewed and reversed the trial judge's order awarding a multiplier because Petitioner did not testify that she had difficulty securing counsel to represent her in the cause without a multiplier under Sun Bank of Ocala v. Ford, 564 So. 2d 1078 (Fla.1990). To support her ruling, the circuit judge relied upon Progressive Express Insurance Co. v. Schultz, 948 So. 2d 1027 (Fla. 5th DCA 2007), as precedent. However, this court concluded in McCarthy Brothers Co. v. Tilbury Construction Inc., 849 So. 2d 7, 10 (Fla. 1st DCA 2003), that expert testimony that a party would have difficulty securing counsel without the opportunity for a multiplier supports a multiplier's imposition. Here, Petitioner presented such testimony, and the Circuit Court departed from the essential requirements of law by failing to apply a principle of law previously enunciated by this Court rather than that of our sister Fifth District Court of Appeal. See Stanfill v. State, 384 So. 2d 141, 143 (Fla.1980); see Kaklamanos, 796 So.2d at 557, (stating a "departure from the essential requirements of law" occurs when a lower court fails to fulfill its constitutional duty to apply a correct principle of law to the admitted facts).
Accordingly, we grant the petition for writ of certiorari and quash the decision under review with directions that the Circuit Court affirm the trial court's award of a contingency fee multiplier and remand to the trial court for further proceedings consistent with this opinion.
ROBERTS and CLARK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625634/ | 464 So. 2d 1231 (1985)
W. Dean THOMPSON and Molly K. Thompson, Appellants,
v.
PLANNING COMMISSION OF the CITY OF JACKSONVILLE, the City of Jacksonville and Edward J. and Ann C. Grenadier and Lawrence L. and Barbara G. Jaffe, Appellees.
No. AT-417.
District Court of Appeal of Florida, First District.
February 11, 1985.
Rehearing Denied April 3, 1985.
*1234 Christine Rieger Milton and Judity S. Beaubouef of Mahoney, Hadlow & Adams, Jacksonville, for appellants.
William L. Coalson of Greene & Greene, P.A., Jacksonville, for appellees Grenadier and Jaffe, and Dawson A. McQuaig, Gen. Counsel, William Lee Allen, Asst. Counsel, Thomas E. Crowder, Asst. Counsel, Jacksonville, for City of Jacksonville, appellee.
ERVIN, Chief Judge.
Appellants seek review of a final order of the circuit court, denying a petition for writ of certiorari and motion for a preliminary injunction, both of which sought relief from the grant of a parking variance by appellee Planning Commission of the City of Jacksonville (Planning Commission) to appellees, the Jaffes and the Grenadiers (owners). Three issues are raised for our consideration on review:
I. Whether there was competent substantial evidence to support the variance;
II. Whether the trial court erred in using the "fairly debatable" standard to determine the validity of the zoning ordinance and whether to grant certiorari; and
III. Whether the trial court erred in finding that the requisite elements for preliminary injunctive relief were not met by appellants.
Because of the method by which the issues were tried below, we do not answer the first two questions, but address only the last.
With the intention of constructing an office building, the owners purchased a triangular piece of property situated across the street from both an office building and two and one-half acres of land owned by appellants. Plans for a 13,500 square foot, two-story building were developed by the owners' architect, contemplating that the owners would occupy the second floor only, with an estimated sixteen employees, and that the first floor would be leased out as rental office space. The architect calculated that a building having sixteen employees and 13,500 square feet of office space would be required by the municipal zoning code to have 35 parking spaces.[1] Inclusion of the potential first floor tenancy into his calculations raised the figure to a total of 46.25 code-required parking spaces. Realizing that if the building were constructed according to his plans, the property would not accommodate the code's required minimum number of spaces, the architect submitted a variance application[2] to the Planning Commission, requesting "[r]eduction of the required on-site parking from 40 spaces to 30 spaces." The only reason offered for the variance was that "[t]he shape of this parcel prohibits development of the required on-site parking." The application also included the following additional information for the Planning Commission to consider: "Traffic Engineer has agreed to allow applicant to provide parallel parking lane at Salisbury Road, immediately in front of subject property. Such `off-site' parking will provide approx. 9 spaces suitable for the anticipated visitor parking." The Planning Department reviewed the application and forwarded to the Planning Commission its recommendation that the requested variance be denied as it does "not appear to be within the *1235 intent and if not provisions of a zoning variance." (sic)
At the Planning Commission meeting, appellants urged that the municipal zoning code actually required a total of 54, and not 40, on-site parking spaces for 13,500 square feet of office space and sixteen employees, and that a shortage of parking for owners' building would result in traffic problems and overflow parking onto appellants' property across the street. The Planning Commission granted the variance in an order which explained only "that the granting of such variance will not be contrary to the public interest and owing to special conditions a literal enforcement of the provisions of the Zoning Code will result in unnecessary and undue hardship."
In response to motions filed by appellants for a temporary restraining order and for preliminary injunction, the trial court issued a temporary restraining order directing appellees to halt construction of the proposed building. Meanwhile, appellants filed in the circuit court a petition for writ of certiorari, seeking revocation of the building permit issued by the city to the owners, and requesting the court to vacate the Planning Commission's order granting the variance, along with a complaint for injunctive relief to prohibit the owners from proceeding with construction until they received a building permit not based on the improper parking variance.
Prior to a hearing scheduled for consideration of the motion for preliminary injunction, appellants unsuccessfully attempted by motion in limine to limit the evidence to the record before the Planning Commission, with the exception of allowing extrinsic evidence on the issue of irreparable harm to appellants. Although, in the exercise of its certiorari jurisdiction, the court should have been restricted to a review of the record of the proceeding before the Planning Commission, the court, in its role of trier of the equitable issues, conducted a trial de novo.[3]
At the hearing, the testimony of a member of the Planning Commission indicated that at no time prior to granting the variance did the Planning Commission make an independent verification of the number of code-required parking spaces set forth in owners' application. The application itself failed to reflect the figures for square footage and occupancy of the proposed building necessary to calculate the parking in accordance with the zoning code. The witness stated that the only reference made at the Planning Commission meeting to any hardship which might result to owners upon literal enforcement of the zoning code provisions related to the triangular shape and cost of the property.
The chief of the city's Building and Zoning Inspection Division (Division), who was present at the Planning Commission meeting in an advisory capacity for the purpose of offering interpretations of the municipal zoning code, testified that he did not have problems with the requested variance, but admitted that he did not verify whether the owners' representation as to the code-required spaces actually complied with the code. The Division employee who reviewed the owners' application for a building permit made no calculation of the required number of parking spaces, and testified that the availability of off-site parking should not be considered in determining if proposals for parking are in compliance with the code.
The circuit court's order denying the motion for preliminary injunction reflects that the hearing on the application for preliminary *1236 injunction was consolidated with the petition for writ of certiorari. The court's order determined the following: that appellants failed to meet the requisite elements for preliminary injunctive relief; that the Planning Commission's order granting the variance includes an implied finding as to all factors necessary to that conclusion so that formal written findings as to each factual determination are not essential; and that "[t]he question of the required number of parking spaces ... is one the Court considers to be fairly debatable, one in which reasonable people might and do differ". Accordingly, the court denied both the petition for certiorari and the application for preliminary injunction.
Pursuant to Florida Rule of Appellate Procedure 9.030(b)(2)(B), we have certiorari jurisdiction to review final orders of circuit courts acting in their review capacity. In such capacity we are limited to the question of whether the circuit court departed from the essential requirements of the law in denying certiorari, and we may not substitute our judgment for that of the circuit court. See City of Hollywood Employees Retirement Fund v. Allen, 412 So. 2d 2 (Fla. 4th DCA 1981). Thus, to review the circuit court's denial of the petition for certiorari, we should have to treat Issues I and II before us on petition for writ of certiorari. Although it would seem that appellants could not properly seek both remedies injunction and certiorari and should have been required to make an election, such election is apparently not mandated by the Jacksonville Municipal Code. If Section 163.250, Florida Statutes, were applicable, appellants would have been required to seek review in circuit court either by a trial de novo or by a petition for writ of certiorari. That statute provides, "The election of remedies shall lie with the appellant." The City of Jacksonville, however, is not bound by section 163.250 in that it has not taken "formal suitable action declaring its election to proceed under [sections 163.XXX-XXX-XXXX]," as required by Section 163.315, Florida Statutes, and has not exercised "any or all of the powers granted under [sections 163.XXX-XXX-XXXX] ... [by the] passage of an appropriate ordinance to that effect by the governing body." Section 163.175(1), Florida Statutes. Notwithstanding the absence of any requirement to elect, the posture of the case before us clearly does not limit our review to those questions raised by certiorari, because the lower court's efforts were directed primarily to deciding de novo the appropriateness of the request for injunctive relief. Indeed, nearly the entire record before us relates to the testimony and evidence received de novo. Accordingly, if we were to agree with appellants' position as to Issue III, relating to the court's error in denying appellants' motion for preliminary injunction, it would be unnecessary for us to address Issues I and II. Since we find error occurred on such ground, we reverse as to Issue III only, thereby rendering moot any further discussion of those issues raised by certiorari.
In so concluding, we recognize that the issuance of a preliminary injunction is an extraordinary remedy which should be granted sparingly, which must be based upon a showing of the following criteria: (1) The likelihood of irreparable harm; (2) the unavailability of an adequate remedy at law; (3) substantial likelihood of success on the merits; and (4) considerations of the public interest. See Islandia Condominium Association, Inc. v. Vermut, 438 So. 2d 89 (Fla. 4th DCA 1983); Playpen South, Inc. v. City of Oakland Park, 396 So. 2d 830 (Fla. 4th DCA 1981). This court may not interfere with the trial court's ruling on the motion for preliminary injunction unless there is a showing of "a clear abuse of discretion or a clearly improper ruling". Reinhold Construction, Inc. v. City Council for City of Vero Beach, 429 So. 2d 699 (Fla. 4th DCA 1983). The burden is upon appellants to demonstrate error.
Appellants offered uncontradicted testimony that construction of the proposed office building with inadequate on-site parking facilities would burden their property and the road between the parties' *1237 properties with overflow parking from owners' property, thereby creating unsightly clutter and traffic congestion. Our review of the trial transcript reveals that appellants made a showing of a reasonable probability, as distinguished from a bare possibility, that their property's market value would decline due to the owners' inadequate parking facilities and consequential overflow. Moreover, as property owners situated immediately across the street from the owners, appellants "have a right to rely on existing zoning conditions and they have a right to a continuation of these conditions in the absence of a showing" that the variance is proper. Friedland v. City of Hollywood, 130 So. 2d 306, 309 (Fla. 2d DCA 1961). If the owners have not made the proper showing for a variance, appellants' rights will be irreparably harmed.
The owners respond that even if appellants' property would decline in market value, such damages can be reasonably measured, and appellants would therefore have an adequate remedy at law in an action for damages. At trial, two experts in appraising real estate testified on the question of measuring appellants' damages. One expert, after assuming first that the owners' property would have a parking shortage of a certain number of spaces, and second, that those employees and clients of the owners' building without assigned spaces would automatically park on appellants' property, stated that he could measure, within reason, appellants' damages. The other expert testified that the latter assumption was strictly conjectural, thereby precluding him from estimating damages. From our review of the entire record, it appears that there was no competent, substantial evidence to support the owners' claim that damages could be adequately measured. There are simply too many uncertainties and variables involved, including the conjectural assumption mentioned above, the questionable number of code-required parking spaces, the number and type of occupants of the owners' office building, the extent of parking necessary to sustain the businesses within the office building and the possibility that a subsequent owner of the building, to whom the variance could be transferred, might require a greater commercial use of the building, with a corresponding greater number of parking spaces to accommodate such increased use. Given these factors, calculations of appellants' money damages would be speculative, thereby establishing the inadequacy of a legal remedy. See Liza Danielle, Inc. v. Jamko, Inc., 408 So. 2d 735, 738-739 (Fla. 3d DCA 1982). We therefore reject the lower court's implicit finding of the existence of a remedy by means of an action for damages.
The third element required for a preliminary injunction is substantial likelihood of success on the merits. This element, as applied to the facts before us, involves a consideration of whether the Planning Commission properly granted the variance to the owners. Pursuant to the Jacksonville Municipal Code, the Planning Commission may grant a variance if it is not contrary to the public interest, and if, "owing to special conditions, a literal enforcement of the provisions of the Zoning Code will result in unnecessary and undue hardship." Section 704.105(b)(1). Specifically, appellants assert that the Planning Commission could not and did not find unnecessary and undue hardship in considering the owners' application.
The necessity of proving unnecessary hardship in order to obtain a variance is well settled in Florida. See e.g., Nance v. Town of Indialantic, 419 So. 2d 1041 (Fla. 1982); Ft. Lauderdale Board of Adjustment v. Nash, 425 So. 2d 578 (Fla. 4th DCA 1982). The requisite hardship may not be found unless there is a showing that under present zoning, no reasonable use can be made of the property. Elwyn v. City of Miami, 113 So. 2d 849 (Fla. 3d DCA 1959). Although the owners applied for the variance because the property's shape prohibited development of the required on-site *1238 parking, there was substantial, competent evidence that the owners could use the property for other commercial purposes under its current zoning classification. Moreover, under Florida case law and the Jacksonville Municipal Code[4], a self-created hardship cannot constitute the basis for a variance. Josephson v. Autrey, 96 So. 2d 784 (Fla. 1957); Allstate Mortgage Corporation of Florida v. City of Miami Beach, 308 So. 2d 629 (Fla. 3d DCA 1975). The alleged hardship falls into the category of self-created hardship. Before purchasing the property, the owners were fully aware of its shape and size, but still designed a building which was too large for the lot, leaving insufficient room for code-required parking. The hardship arose solely from their own conduct and expectations. Allstate Mortgage Corporation, 308 So.2d at 632; Elwyn, 113 So.2d at 852. In that there was no unnecessary hardship proven by the owners, appellants have demonstrated a substantial likelihood of success on the merits.
Finally, enforcement of legitimate zoning regulations is in the public interest. Clarke v. Morgan, 327 So. 2d 769 (Fla. 1975). The granting of preliminary injunctive relief against an improperly granted variance serves the public interest. Potential traffic-flow problems caused by inadequate on-site parking is clearly a matter of public concern.
We conclude that appellants sufficiently demonstrated that the trial court's denial of the motion for preliminary injunction was an abuse of discretion, and accordingly, we reverse on that issue.
REVERSED and REMANDED for further consistent proceedings.
BOOTH and ZEHMER, JJ., concur.
NOTES
[1] Section 708.612(e)(3) of the Jacksonville Municipal Code requires, "Professional and business offices (other than medical or dental): One space for each five hundred square feet of gross floor space, plus one space for each two occupants or employees."
[2] Section 704.105(b)(1) of the Jacksonville Municipal Code provides: "The Planning Commission may grant variances which are found to not be contrary to the public interest and without which, owing to special conditions, a literal enforcement of the provisions of the Zoning Code will result in unnecessary and undue hardship."
[3] In an age in which the district courts of appeal routinely review direct appeals of agency action under Chapter 120, it seems somewhat anomalous that the orders of municipal planning commissions must first be subjected to scrutiny by a circuit court, here by both certiorari and suit for injunctive relief, requiring in part a de novo hearing before the trial court of issues that were considered first by the Commission. It would seem that the ideal method of reviewing the Planning Commission's final action would be by direct appeal to the district court. Regrettably that course of action is not available. The Planning Commission is not an agency as defined by Section 120.52(1)(b) or (c), Florida Statutes. Accord, Sporl v. Lowrey, 431 So. 2d 245 (Fla. 1st DCA 1983).
[4] Section 708.101(vvvv) of the Jacksonville Municipal Code provides: "A variance is a relaxation of the terms of this Zoning Code which will not be contrary to the public interest and where, owing to conditions peculiar to the property and not the result of the actions of the applicant, a literal enforcement of this Zoning Code would result in unnecessary and undue hardship." (e.s.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625630/ | 176 Wis. 2d 622 (1993)
500 N.W.2d 305
Barbara SCHULTE and James Schulte, Plaintiffs-Respondents-Petitioners,
v.
Lawrence J. FRAZIN, M.D., Physicians Insurance Company of Wisconsin and Wisconsin Patients Compensation Fund, Defendants-Respondents-Petitioners,
COMPCARE HEALTH SERVICES INSURANCE CORPORATION, Defendant-Appellant.[]
No. 91-1185.
Supreme Court of Wisconsin.
Oral argument January 6, 1993.
Decided June 4, 1993.
*624 For the plaintiffs-respondents-petitioners and the defendants-respondents-petitioners there were briefs by William M. Cannon, Mark L. Thomsen, Jeffrey R. *625 Munson and Cannon & Dunphy, S.C., Milwaukee, and oral argument by William Cannon.
For the defendant-appellant there was a brief by Elizabeth Bartlett, Milwaukee and Lawrence M. Shindell and M. Elizabeth Burns and Shindell & Shindell, Milwaukee and oral argument by Elizabeth Bartlett.
Amicus Curiae brief was filed by Terry J. Booth and Fellows, Piper & Schmidt, Milwaukee for Wisconsin Health Insurers.
LOUIS J. CECI, J.
This case comes before the court on petition for review of a court of appeals decision, Schulte v. Frazin, 168 Wis. 2d 709, 484 N.W.2d 573 (Ct. App. 1992), which reversed an order of the circuit court for Milwaukee County, David V. Jennings, Jr., Circuit Judge. The circuit court judge's order dismissed the plaintiff Schultes' (the Schultes) complaint and the cross-claim and counterclaim of subrogated insurer Compcare Health Services Insurance Corporation (Compcare) with prejudice because the Schultes and the defendants had settled and the court had granted the Schultes' motion to extinguish Compcare's subrogation rights. The sole issue on review is whether Compcare may recover the subrogated amount. The circuit court held it could not, and the court of appeals reversed. Because the court of appeals' holding creates the inequitable prospect of Compcare's competing with the Schultes for funds which indisputably fail to make the Schultes whole, we reverse.
Barbara Schulte underwent spinal surgery in June of 1988. Dr. Frazin performed the surgery. During the surgery, a drill came into contact with Mrs. Schulte's spinal cord, causing severe and permanent injuries. Compcare, Mrs. Schulte's medical insurer, *626 paid roughly $90,000 for medical treatment of Mrs. Schulte.
The Schultes filed a complaint, alleging medical malpractice against Dr. Frazin and his insurers, Physicians Insurance Company of Wisconsin, Inc. and Wisconsin Patients Compensation Fund (Dr. Frazin). The Schultes joined Compcare as a party because of its subrogated interest. See sec. 803.03(2), Stats.
Dr. Frazin filed an answer, denying all liability for Mrs. Schulte's injuries.
Compcare filed an answer, a counterclaim against the Schultes, and a cross-claim against Dr. Frazin. Compcare's pleading stated in pertinent part:
2. If the plaintiffs' claim should be settled prior to verdict, under circumstances wherein it is claimed that the plaintiff is not made whole and that the subrogated interest of Compcare is extinguished, then, and in that event, Compcare is entitled to a full hearing on all pertinent issues, and a declaratory ruling as to what extent it may equitably share in said settlement.
WHEREFORE, Compcare demands judgment for damages allowed by law in the event of any settlement or verdict recovery by the plaintiffs, together with its costs, disbursements and interest as prescribed by law.
During February, 1991, the circuit court made several unsuccessful attempts to resolve the matter via a settlement among all parties. On February 27, 1991, Dr. Frazin and his insurance carrier settled with the Schultes for $2,460,000. The settlement agreement did not include any payment to Compcare for the subrogated amount. Additionally, the settlement agreement provided that the Schultes would indemnify Dr. Frazin and his insurance carriers for any liability arising out *627 of the incident. The Schultes assert that one of the terms of the settlement was that a hearing would take place in order to resolve whether Compcare had a right of subrogation. The day after they settled, the Schultes moved to extinguish Compcare's subrogation lien on the ground that the settlement amount had not made them whole.
The circuit court held a hearing to determine whether the settlement had made the plaintiffs whole. See Rimes v. State Farm Mut. Auto. Ins. Co., 106 Wis. 2d 263, 316 N.W.2d 348 (1982). Compcare did not actively participate in the hearing, except for examining one of the Schultes' witnesses regarding the indemnification agreement which the settlement contained. Nevertheless, Compcare asserted it was not waiving its rights. Compcare asserted that regardless of whether the Schultes had been made whole, Compcare could still proceed on its cross-claim against the tortfeasor.
During the Rimes hearing, the Schultes presented evidence that their damages amounted to between $2,950,000 and $4,790,000. The court determined that the settlement had not made the Schultes whole and, therefore, entered an order extinguishing Compcare's subrogation lien. On April 15, 1991, the circuit court entered an order dismissing the Schultes' complaint and Compcare's counter and cross-claims with prejudice. Compcare appealed from that order.
The court of appeals reversed, relying on Blue Cross v. Fireman's Fund, 140 Wis. 2d 544, 411 N.W.2d 133 (1987), and Mutual Service v. American Family, 140 Wis. 2d 555, 410 N.W.2d 582 (1987). This court granted a petition for review filed by the Schultes and Dr. Frazin. *628 [1]
The issue to be decided concerns the respective rights of the insured and the subrogated insurer when the insured has settled with the defendants without involving the subrogated insurer; the insured has requested a Rimes hearing; the subrogated insurer has had an opportunity to participate in the hearing; and the circuit court has determined that the settlement has not made the plaintiff whole. This issue presents us with a question of law which we decide without deference to the lower courts. Mutual Service, 140 Wis. 2d at 560-61.
There is no dispute that the settlement did not make the plaintiffs whole. See generally Rimes, 106 Wis. 2d at 275 ("Under Wisconsin law the test of wholeness depends upon whether the insured has been completely compensated for all the elements of damages, not merely those damages for which the insurer has indemnified the insured."). Compcare, the subrogated insurer, argues that under Blue Cross and Mutual Service, it may recover the subrogated amount regardless of whether the Schultes have been made whole. The Schultes, on the other hand, contend that under Rimes and Garrity v. Rural Mut. Ins. Co., 77 Wis. 2d 537, 253 N.W.2d 512 (1977), Compcare may not recover because the Schultes have not been made whole. We agree with the Schultes.
[2]
The doctrine of subrogation is based upon equitable principles. Rimes, 106 Wis. 2d at 271. "Equity does not lend itself to the application of black letter rules." Vogt v. Schroeder, 129 Wis. 2d 3, 12, 393 N.W.2d 876 (1986). To resolve the issue in this case, we must apply equitable principles to the facts. Id.
*629 In Garrity, we established the equitable principle that "the subrogee has no right to share in the fund recovered from the tortfeasor until the subrogor is made whole." Garrity, 77 Wis. 2d at 547. We reasoned that "where either the insurer or the insured must to some extent go unpaid, the loss should be borne by the insurer for that is a risk the insured has paid it to assume." Id. at 542.
Rimes reaffirmed the principle that "[s]ubrogation is to be allowed only when the insured is compensated in full by recovery from the tortfeasor." Rimes, 106 Wis. 2d at 272. Rimes was involved in an auto accident and together with his wife started an action against the other drivers involved and their insurers. Id. at 265. State Farm, Rimes' insurer, had made medical payments to Rimes and was thus joined as a defendant because of its possible subrogation rights. Id. at 265-66. State Farm filed an answer, alleging its subrogation rights, and participated in the case. Id. at 266.
On the second day of trial, Rimes and his wife settled their claims for $125,000. Of the $125,000, the amount of the medical payments ($9,649.90) was paid into an escrow account to await the outcome of a hearing on State Farm's subrogation rights. Id. at 267. The trial court held a hearing at which it determined that the settlement amount had not made the Rimeses whole and thus, under Garrity, the insurers had no right of subrogation. Id. at 269. We affirmed, saying, "The purpose of subrogation is to prevent a double recovery by the insured.... Subrogation is to be allowed only when the insured is compensated in full by recovery from the tortfeasor." Id. at 272. We also approved of the use of what has come to be referred to as a Rimes hearinga hearing at which the circuit *630 court determines what sum would make the settling plaintiffs whole. Id. at 278-79.
Rimes has much in common with this case. In both cases the injured insured requested a Rimes hearing so that the circuit court could determine whether the injured insured had been made whole. Consistent with Rimes, after the Schultes settled, they filed a motion asserting that Compcare's right to share in the settlement proceeds depended on the court's finding that the settlement had made the Schultes whole. The circuit court held a Rimes hearing and found that the settlement had not made the plaintiffs whole. Moreover, in both cases, if the circuit court had determined that the question of whether the plaintiffs had been made whole was irrelevant to the subrogated insurer's right to recover, the subrogated insurer would have recovered from the plaintiffs' insufficient settlement funds. In Rimes, the subrogated insurer would have recovered from the escrowed funds. In this case, Compcare, because of the indemnification clause, would essentially recover from the Schultes. Under Garrity and Rimes, the circuit court, after conducting the required hearing, properly held that Compcare had no right of subrogation.
Rimes was not, however, our last word on subrogation and the made-whole inquiry. In Vogt, we recognized that the equities to be balanced in Garrity and Rimes were between an insurer's right to recoup benefits paid and an injured person's right to obtain full compensation. The equities in Vogt were between an underinsurer who had paid benefits and an underinsured tortfeasor who had not paid for the damages she had caused. Vogt, 129 Wis. 2d at 16-17. Thus, we recognized a new equitable principle, apart from the made-whole principle: "[T]he wrongdoer should be *631 responsible for his conduct and not be allowed to go scot-free by failing to respond in damages while another, an indemnitor for the injured party, is required to do so." Id. at 13. Vogt established that the Rimes made-whole principle was not absolute and set the stage for Blue Cross and Mutual Service.
Compcare argues that under Blue Cross and Mutual Service, the Rimes made-whole inquiry is irrelevant to the issue of whether the subrogated insurer may pursue a direct action against the tortfeasor. We disagree. Compcare's argument overlooks the distinctions between this case and Blue Cross and Mutual Service. Most importantly, the parties in Blue Cross and Mutual Service did not resolve the subrogated insurers' rights in a Rimes hearing as they did in this case. Moreover, we have also come to disagree with the reasoning of portions of the Blue Cross and Mutual Service opinions. Thus, we do not give Blue Cross and Mutual Service the same weight as Compcare.
In Blue Cross, the issue was "whether a subrogated insurer, to state a claim for relief, must allege that an insured who has settled with the tortfeasor has been made whole." Blue Cross, 140 Wis. 2d at 546. We noted that Vogt recognized that the principle that the insured must be made whole before the subrogated insurer may recover was not absolute, but depended on the equities and thus the facts involved. Id. at 550. We stated that an injured insured who has settled his part of his claim against the tortfeasor before the subrogated insurer commences suit against the tortfeasor does not have to be made whole before the subrogated insurer can state a claim for relief against the tortfeasor and his insurer. Id. at 546.
We concluded that the equitable factor present in Garrity and Rimesthe prospect of an insurer competing *632 with its own insured for funds which are insufficient to make the insured wholewas not present. The court distinguished the case from Garrity and Rimes on the basis of two facts. First, the subrogated insurer did not seek to recover funds from the injured insured. Instead, the complaint sought recovery from the tortfeasor and his insurer. Thus, according to the Blue Cross court, the subrogated insurer was not directly competing with its insured for a limited set of funds. Second, the injured insured had settled his part of the claim before the subrogated insurer initiated its suit against the tortfeasor.
The Blue Cross court correctly noted that where the insured has not settled with the tortfeasor before the subrogated insurer brings suit, any recovery the insurer makes could reduce the amount available to compensate the injured insured. Id. at 552. It gave the following example:
Such a reduction in the insured's recovery would occur in a case in which the tortfeasor's assets were limited to $100,000, and the damages to the injured party were $200,000. If the subrogated insurer had a claim for $30,000 and was allowed to recover this amount prior to any suit by the injured party, the amount of money left to compensate the injured party would decrease from $100,000 to $70,000.
Id., n.3. We agree with this analysis. It illustrates an insured and subrogated insurer competing with each other for limited settlement funds. The Blue Cross court recognized that in this situation Garrity and Rimes applied to prohibit the insurer from recovering until the insured had been made whole. Id. at 552.
The Blue Cross court erred, however, in failing to recognize that the same type of competition for limited *633 funds exists in other settlement situations. The Blue Cross court asserted that the "injured party's recovery is not constrained by the existence of the subrogated insurer's cause of action." Id. at 553. We disagree. Indeed, even Compcare in its brief admits, "A tortfeasor who wishes to settle must inevitably address the insurer's separate rights in some way."
Given the realities of settlements, settling plaintiffs and subrogated insurers usually complete in a practical sense for limited settlement funds. Settling defendants typically have limited policy limits and assets and typically want to pay as little as possible. Settling plaintiffs typically want as much as possible. Moreover, we question why a defendant would offer as much to settle with only the plaintiff as to settle with both the plaintiff and the subrogated insurer. See generally Vogt, 129 Wis. 2d at 25-26. Dr. Frazin, for example, apparently insisted on such a complete release, hence the indemnification agreement and the agreement to seek a Rimes hearing.
[3]
The court of appeals in this case recognized that settlement funds may be either practically or psychologically limited. But the court of appeals concluded these limits were not worthy of legal recognition. Schulte, 168 Wis. 2d at 717-18. We disagree. The practical competition between an insured and the subrogated insurer is an equitable factor we cannot ignore.
[4]
The Blue Cross court discussed an indemnification agreement similar to the one made between the Schultes and Dr. Frazin. The Blue Cross plaintiffs agreed to indemnify the tortfeasor's insured for any claims made by the subrogated insurer. Such an *634 indemnification agreement indirectly creates the prospect that the insurer will be competing with its own insured. Nevertheless, the Blue Cross court refused to recognize the effect this indemnification agreement had and concluded that such an agreement attempts to circumvent an insurer's subrogation rights by placing the responsibility for the tortfeasor's wrong on the victim. Blue Cross, 140 Wis. 2d at 554. Consequently, the Blue Cross court concluded that the indemnification agreement did not impair the otherwise valid subrogation right. Id.
[5,6]
We disagree with the Blue Cross court's analysis of indemnification agreements and consequently overrule the language in Blue Cross which disapproves of such agreements. See id. at 553-54. First of all, that language ignores the rights of competent parties to enter into such contracts. See Arnold P. Anderson, Wisconsin Insurance Law sec. 12.7 at 351 (3d ed. 1990). More importantly, we believe the injured party should have the right to settle on its own terms. Wisconsin has a "long-standing policy in favor of settlements." Collins v. American Family Mut. Ins. Co., 153 Wis. 2d 477, 490, 451 N.W.2d 429 (1990) (citations omitted). "[T]he public interest requires that a plaintiff be permitted to settle claims...." Loy v. Bunderson, 107 Wis. 2d 400, 425, 320 N.W.2d 175 (1982). A tortfeasor, such as Dr. Frazin, may quite reasonably not be willing to offer the maximum amount possible to settle unless he receives a complete release. Given the differing incentives and motives of the insured, the subrogated insurer, and the tortfeasor and his insurer, it may be that only the injured party and the tortfeasor can reach an agreement to settle. Consequently, refusing to recognize *635 indemnification agreements could hamper plaintiffs' settlement attempts.
If we were to agree with Compcare's argument, subrogated insurers could refuse to participate in a Rimes hearing and then, regardless of the outcome of the hearing, pursue the subrogated amount from the tortfeasor. Such a holding would frustrate settlement attempts; defendants would make lower offers because they could not be assured that a release would be truly final and complete.
[7]
Because this case presents different equities than Blue Cross and because we have come to disagree with some of the reasoning and implications of Blue Cross, we conclude that Blue Cross does not allow Compcare to assert its subrogation rights. We do not completely overrule Blue Cross, however. Blue Cross still applies when a plaintiff and tortfeasor settle without involving the subrogated insurer and without submitting the issue of the subrogated insurer's rights to the circuit court.
We also conclude that Mutual Service does not allow Compcare to recover. The issue in Mutual Service was whether the circuit court erred by dismissing the tortfeasor's insurer from a subrogation action brought by the injured party's insurer after the tortfeasor's insurer settled with the injured party and issued two checks, one of which was issued to all the parties for the amount of the subrogated interest. Mutual Service, 140 Wis. 2d at 557. The tortfeasor's insurer had argued that whether the subrogated insurer could recover the subrogated amount depended on whether the settlement had made the injured party whole. Id. at 563. The court rejected this argument, saying that neither Garrity nor Rimes applies "in an action brought by a *636 subrogated insurer against the tortfeasor or the tortfeasor's insurer where the subrogated insurer's insured has previously settled with the tortfeasor." Id. at 563-64.
The setting parties in Mutual Service did not request a Rimes hearing. The Schultes did, Compcare had an opportunity to participate, and the court found that the settlement left the Schultes less than whole. This case presents significantly different equities than Mutual Service, and we conclude that the court of appeals erred by relying on Mutual Service to reach a conclusion that allowed Compcare to recover.
[8]
The Wisconsin Health Insurers, in an amicus brief, assert that should we reverse the court of appeals, attorneys in future cases will act unethically and collusion will take place between plaintiffs and defendants in order to eliminate subrogated insurers' interests. We totally reject such a view of the profession of the law in this state. While it may be true that there are some individuals in all professions and trades who are incapable of ethical behavior, this court cannot and should not decide cases on such scare tactics. Attorneys operate under ethical rules, and as we develop the common law we must assume that attorneys act ethically.
We also recognize that our cases may conflict to some extent over whether subrogation recoveries decrease premiums. Compare Rimes, 106 Wis. 2d at 277 n.4, with Cunningham v. Metropolitan Life Ins. Co., 121 Wis. 2d 437, 445, 360 N.W.2d 33 (1985). Nevertheless, we think Compcare overstates its case by arguing that reversing the court of appeals will automatically result in higher premiums for "all Wisconsin insureds." In any case, because subrogation is an equitable *637 doctrine we must concern ourselves primarily with balancing the equities.
[9, 10]
We conclude that when an injured insured settles with the tortfeasor and that person's insurer without resolving the subrogated insurer's part of the claim; the settling parties ask the circuit court to determine whether the injured party has been made whole; and the subrogated insurer has an opportunity to participate in the hearing, the subrogated insurer's rights of subrogation depend on whether the settlement made the plaintiff whole. In such a situation, either the insured or its insurer must to some extent go unpaid. If, as in this case, the circuit court determines that the settlement does not make the plaintiff whole, the subrogated insurer has no right of subrogation.
By the Court.The decision of the court of appeals is reversed.
STEINMETZ, J. (dissenting).
I agree with the court of appeals decision, Schulte v. Frazin, 168 Wis. 2d 709, 484 N.W.2d 573 (Ct. App. 1992), which correctly applies this court's holdings in Blue Cross v. Fireman's Fund, 140 Wis. 2d 544, 411 N.W.2d 133 (1987) and Mutual Service v. American Family, 140 Wis. 2d 555, 410 N.W.2d 582 (1987) to the facts of this case. The majority decision improperly violates the doctrine of stare decisis by rejecting the result and some of the reasoning in Blue Cross and Mutual Service, cases which were unanimously decided by this court only six years ago and upon which the parties to this action were entitled to rely.
For tactical reasons, the plaintiffs settled their claim for less than the defendants' insurance policy *638 limits. As the court of appeals stated, "Compcare was notified of a settlement far below the policy limits only after the settlement had occurred." Schulte, 168 Wis. 2d at 717 (citing secs. 655.27, 655.23(4), Stats.). Because the plaintiffs agreed to accept less than the defendants' insurance policy limits, it cannot be said that the plaintiffs have not been made whole. As a result, Compcare should be allowed to assert its subrogation claim against the tort-feasor.
Moreover, contrary to the holding of the majority, the indemnity agreement between the plaintiffs and the tort-feasor should not operate to defeat Compcare's subrogation claim. In Blue Cross, this court stated the following:
Were we to recognize that the existence of an indemnity agreement would bar any claim by a subrogated insurer [against the tortfeasor], all [such] subrogation claims could be barred through the use of indemnity agreements, and our recognition of an independent claim in the [subrogated] insurer [against the tortfeasor] would be meaningless. Because such ... indemnification agreement[s] essentially attempt[ ] to circumvent an insurer's subrogation rights by placing the responsibility for the tortfeasor's wrong on the victim, we decline to hold that such agreements impair ... otherwise valid subrogation right [s].
140 Wis. 2d at 554.
For the foregoing reasons, I dissent.
NOTES
[] Motion for reconsideration filed June 24, 1993. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625655/ | 996 F. Supp. 999 (1997)
Kenneth A. JOHNSON, Petitioner,
v.
Joseph CRABTREE, Warden, FCI Sheridan, Respondent.
No. CIV. 97-37-HA.
United States District Court, D. Oregon.
December 1, 1997.
*1000 OPINION AND ORDER
HAGGERTY, District Judge.
I. INTRODUCTION
This matter comes before the court on Mr. Johnson's petition for a writ of habeas corpus and Respondent's motion to dismiss. Mr. Johnson's petition for a writ of habeas corpus challenges the ruling by the United States Bureau of Prisons finding him ineligible for a sentence reduction pursuant to 18 U.S.C. § 3621(e)(2)(B).
Upon consideration of the parties briefs, the relevant law, and the record herein, the court rules that (1) Mr. Johnson's petition for a writ of habeas corpus under 28 U.S.C. § 2241 is ripe for judicial consideration and (2) possession of stolen explosives is a nonviolent offense for the purposes of Section 3621(e)(2)(B) eligibility. Accordingly, Mr. Johnson's petition for a writ of habeas corpus will be granted.
II. BACKGROUND
Mr. Johnson is a federal prisoner currently being housed by the Bureau of Prisons ("BOP") at the Federal Correctional Institution ("FCI") at Sheridan, Oregon. On December 6, 1995, Mr. Johnson entered a plea of guilty to a charge of possession of stolen explosives in violation of title 18 U.S.C. § 842(h)(2), in the United States District Court for the District of Idaho. Subsequently, on February 16, 1996, Mr. Johnson was sentenced to a term of imprisonment of 50 months to be followed by three years of supervised release.
Mr. Johnson arrived at FCI Sheridan on March 14, 1996. On September 11, 1996, BOP officials at FCI Sheridan advised Mr. Johnson that his conviction for possession of stolen explosives in violation of 18 U.S.C. § 842(h) rendered him ineligible for a reduction of his 50-month guideline sentence pursuant to the Violent Crime Control and Law Enforcement Act of 1994 ("VCCLEA"), 18 U.S.C. § 3621(e). The VCCLEA authorizes the BOP to provide a drug abuse treatment program ("DAT program") that permits the BOP to grant a successful graduate of the program a sentence reduction of up to one year. 18 U.S.C. § 3621(e)(2)(B). Mr. Johnson entered into the DAT program on September 25, 1996, despite the BOP's September 11, 1996 notice to him that he was ineligible for a sentence reduction.
On January 10, 1997, while Mr. Johnson was participating in the first phase of the DAT program, he filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241. Mr. Johnson requested that this court order the BOP to find him eligible for the one-year sentence reduction authorized under 18 U.S.C. § 3621(e)(2)(B). In response, on April 11, 1997, Respondent filed a motion to dismiss arguing that Mr. Johnson had not successfully completed the residential component of the DAT program and was thus not permitted to contest eligibility. Mr. Johnson then filed a motion for an extension of time until August 8, 1997, to reply to the Respondent's motion for dismissal. This court *1001 granted Mr. Johnson's motion and entered an order to that effect on June 12, 1997.
On August 8, 1997, Mr. Johnson filed a reply to the Respondent's motion to dismiss and a supplemental memorandum in support of his petition seeking habeas corpus relief. On September 24, 1997, Mr. Johnson successfully completed the 500 hour residential component of the DAT program. On October 9, 1997, Respondent filed an answer to Mr. Johnson's petition for a writ of habeas corpus. On October 22, 1997, Mr. Johnson filed a reply to the government's opposition to his petition for a writ of habeas corpus.
III. ANALYSIS
As a preliminary matter, this court must determine whether Mr. Johnson's petition for a writ of habeas corpus under 28 U.S.C. § 2241 is ripe for judicial consideration. If the court finds that the case is ripe for consideration, the court must then determine whether Mr. Johnson was convicted of a nonviolent offense and is therefore eligible for a sentence reduction pursuant to Section 3621(e)(2)(B).
A. Mr. Johnson's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 is Ripe for Consideration
The first issue before the court is whether the court may review a BOP's prospective eligibility determination prior to the prisoner's successful completion of the DAT program.[1]
Respondent argues that based on this court's orders in Bowser v. Crabtree, Civil Action No. 96-44-HA and Jose Contreras-Palomares v. Crabtree, Civil Action No. 96-1715-HA, the present action is premature and should be denied and dismissed without prejudice. Specifically, Respondent argues that Mr. Johnson must successfully complete all three phases of the DAT program before he can petition this court to review the a determination of eligibility for the DAT program by the BOP. Therefore, Respondent concludes that since Mr. Johnson has not completed all three phases of the DAT program, his petition for a writ of habeas corpus is not yet ripe for consideration.
Although there is no controlling law on this issue, the recent Ninth Circuit case, Cort v. Crabtree, 113 F.3d 1081 (9th Cir.1997), sheds some light on the matter. In Cort, the court stated that contrary to Respondent's assertion, the government should not delay a determination of eligibility for the DAT program. Cort 113 F.3d at 1085. Specifically, the court stated that delaying a determination of eligibility would undermine the purpose of the statute. Id. The Cort court further explained that,
[w]hile some prisoners may be willing to enroll, and even to complete treatment, simply on the basis of a reasonable expectation that they will be found eligible, or even simply because they desire to cure themselves of drug addiction, prisoners who know prior to enrollment that they are eligible to receive a shorter sentence are likelier to enroll, and those who are found during the course of the program to be eligible for early release are likelier to complete the program.
Id.
In light of Cort, this court holds that a prisoner may seek judicial review of a BOP prospective eligibility determination once the BOP renders its decision. In other words, successful completion of the DAT program is not a prerequisite to seeking judicial review. This ruling is consistent with the purpose of the statute in providing prisoners with an incentive to enter and complete a substance abuse treatment program.
In the present case, the BOP advised Mr. Johnson that he was ineligible for a reduction in his 50-month guideline sentence on September 11, 1996. Accordingly, Mr. Johnson's petition for a writ of habeas corpus under 28 U.S.C. § 2241 is ripe for consideration.
B. Possession of Stolen Explosives is a Nonviolent Offense for the Purposes of Section 3621(e)(2)(B) Eligibility
Having concluded that this case is ripe for judicial review, this court must now consider *1002 whether the BOP has properly decided that Mr. Johnson is ineligible for a reduction in sentence pursuant to 18 U.S.C. § 3621(e)(2)(B).
Mr. Johnson contends that the BOP improperly considers possession of stolen explosives, in violation of 18 U.S.C. § 842, a "crime of violence" within the meaning of Section 924(c)(3), and therefore not a "nonviolent offense" under Section 3621(e)(2)(B). Mr. Johnson argues that possession of stolen explosives is not considered a crime of violence under the United States Sentencing Guidelines or in prevailing case law, and thus should not be categorized as such in Program Statement 5162.02. Furthermore, Mr. Johnson argues that possession of stolen explosives is "nonviolent" within the meaning of Section 3621(e) as a matter of law.
Respondent, on the other hand, argues that the BOP's determination to categorically exclude from early release those inmates convicted of possession of stolen explosives in violation of 18 U.S.C. § 842(h) is a valid exercise of the discretion afforded to the director of the BOP. Respondent further argues that there is no binding authority in this district which precludes such a determination.
On September 13, 1994, Congress passed the Violent Crime Control and Law Enforcement Act of 1994 which, inter alia, directed the BOP to "make available appropriate substance abuse treatment for each prisoner the [BOP] determines has a treatable condition of substance addiction or abuse." 18 U.S.C. § 3621(b). As an incentive for prisoners to obtain treatment while in custody, Congress vested the BOP with the authority to reduce "the period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program ... but such reduction may not be more than one year from the term the prisoner must otherwise serve." 18 U.S.C. § 3621(e)(2)(B).
While the statute does not define "nonviolent offenses," BOP regulations promulgated thereunder adopted the definition of "crime of violence" contained in 18 U.S.C. § 924(c)(3),[2] to define "nonviolent offenses" and to determine which prisoners are eligible for sentence reductions. See 28 C.F.R. § 550.58.[3]
In an effort to provide further guidance on the definition of "crime of violence," the BOP issued Program Statement 5162.02 (July 24, 1995) (amended April 26, 1996). Program Statement 5162.02 lists a number of offenses and categorizes them as either crimes of violence in all cases or crimes of violence depending on the facts in a particular case for purposes of Section 3621. The amended version of Program Statement 5162.02 specifically includes all offenses in violation of 18 U.S.C. § 842 as "crimes of violence."[4]
The principles established in Davis v. Crabtree, 923 F. Supp. 166 (D.Or.1996), affirmed, 109 F.3d 566 (9th Cir.1997) and Downey v. Crabtree, 923 F. Supp. 164 (D.Or.1996), affirmed, 100 F.3d 662 (9th Cir.1996) control the outcome in the present case.
In these two cases, the Ninth Circuit concluded that although the BOP "has broad discretion to adopt any reasonable definition of `nonviolent offense' under Section 3621," the BOP is bound by this Circuit's interpretation of 18 U.S.C. § 924(c)(3). See Downey 100 F.3d at 666. The courts in Davis and Downey thus concluded that because the Ninth Circuit had explicitly held that, "possession of a firearm by a felon is not a `crime *1003 of violence' under § 942(c)(3),"[5] the BOP's determination that the possession of a firearm by a convicted felon was a crime of violence under 18 U.S.C. § 3621(e)(2)(B) was contrary to the "well-established" law of this Circuit. Id. at 667; Davis 109 F.3d at 569. Moreover, Davis specifically held that if an offense is considered nonviolent for the purposes of the United States Sentencing Guidelines, the BOP must also consider it nonviolent for the purposes of Section 3621(e)(2)(B). Davis 109 F.3d at 569.
This court finds that for the purpose of defining a "crime of violence" there is no difference between possession of firearms and possession of explosives. Similar to the crime of being a felon in possession of a firearm, the crime of possession of explosives does not have as an element the actual, attempted or threatened use of violence, nor does the actual conduct it charges involve a serious potential risk of physical injury to another. Therefore, it follows that mere possession of explosives does not fall with in the term of "crime of violence" under Section 924(c)(3). In addition, this court notes that the United States Sentencing Guidelines does not contemplate mere possession of explosives as a "crime of violence." Accordingly, this court rules that for the purposes of Section 3621(e)(2)(B), the offense of possession of stolen explosives is a nonviolent offense. Consequently, the BOP must consider prisoners convicted of possession of stolen explosives to be eligible for a sentence reduction under 18 U.S.C. § 3621(e)(2)(B).
ORDER OF THE COURT
For the foregoing reasons, it is
ORDERED that Mr. Johnson's petition for a writ of habeas corpus (doc. # 2) be and is hereby GRANTED; it is
FURTHER ORDERED that Respondent's motion to dismiss (doc. # 12) be and is hereby DENIED; it is
FURTHER ORDERED that this case be remanded to the BOP for further proceedings consistent with this opinion and order;[6] and it is
FURTHER ORDERED that all other pending motion be and are hereby DENIED as moot.
IT IS SO ORDERED.
NOTES
[1] Prospective eligibility determinations made by the BOP are merely provisional and remain subject to completion of the entire DAT program.
[2] Section 924(c)(3) provides that the term "crime of violence" means an offense that is a felony and
(A) has an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
18 U.S.C. § 924(c)(3).
[3] 28 C.F.R. § 550.58 provides that "inmates whose current offense is determined to be a crime of violence as defined in 18 U.S.C. § 924(c)(3)" are not eligible for early release notwithstanding their enrollment in a qualifying drug treatment program.
[4] The April 26, 1996 Program Statement 5162.02 states that 18 U.S.C. § 842(h) convictions are considered to be violent convictions for the purpose of early release determinations under 18 U.S.C. § 3621(e).
[5] See United States v. Cantu, 12 F.3d 1506, 1513-14 (9th Cir.1993) (holding that felon in possession of a firearm was not a crime of violence for the purposes of the U.S.S.G. because the status of being a felon in possession "does not have as an element the actual, attempted or threatened use of violence, nor does the actual conduct it charges involve a serious potential risk of physical injury to another.")
[6] The BOP is directed to immediately transfer Mr. Johnson to a Community Corrections Center if there is no other basis for denying him early release under § 3621(e)(2)(B). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625674/ | 464 So. 2d 1005 (1985)
Thomas SHOEMAKER, et al.
v.
FIDELITY FINANCE, INC. OF ZACHARY.
Thomas SHOEMAKER, et al.
v.
FIDELITY FINANCE, INC. OF BAKER.
Nos. CA 84 0089, CA 84 0090.
Court of Appeal of Louisiana, First Circuit.
February 26, 1985.
Writ Denied May 3, 1985.
*1006 James C. Ferguson, Baton Rouge, for Thomas Shoemaker, et al.
John Engelsman, Baker, for Fidelity Finance, Inc. of Zachary.
Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVINGTON, JJ.
LOTTINGER, Judge.
Defendants made two loans to Thomas and Lois Shoemaker on August 1, 1977. When both loans became delinquent defendants filed suits on July 25, 1980 and August 4, 1980. Judgments were rendered in defendants' favor. However, defendants failed to credit the Shoemakers any unearned interest due them despite declarations in the suit that such credit had been given. On February 2, 1980, defendants issued a writ of fieri facias against the Shoemakers in which Thomas Shoemaker's salary was garnished in the amount of $6,247.84. Additionally, a writ of seizure and sale was issued against plaintiffs' immovable property situated in Clinton, Louisiana. Plaintiffs obtained an injunction to halt the sale of the property.
On February 18, 1981, plaintiffs filed suit alleging defendants' failure to credit unearned interest prior to filing suit thereby subjecting defendants to penalties provided by the Louisiana Unfair Trade Practices and Consumer Protection Law, and the Louisiana Consumer Credit Law (La.R.S. 9:3510 et seq.).
Defendants credited plaintiffs' account with the proper interest on April 8 and 9, 1981. Judgment was rendered on October 24, 1983 in favor of plaintiffs for the sum of $10,164.75, plus $429.95 for insurance premium rebates and $2,500.00 in attorney's fees.
Defendants have appealed the judgment of the trial court asserting the following assignments of error:
(1) The trial court erred in granting the plaintiffs relief when they had not complied with the notice requirements set forth in La.R.S. 9:3552.
(2) The trial court erred in finding the actions of defendants in bad faith.
(3) The trial court erred in finding defendants were under a duty to cancel plaintiffs' insurance and rebate the unearned premiums when suing on the delinquent notes.
Plaintiffs have answered this appeal.
DEFENDANT'S ASSIGNMENT OF ERROR NO. 1
By way of this assignment of error defendants assert the trial court erred in granting the plaintiffs relief when defendants did not satisfy the notice requirements set forth in La.R.S. 9:3552. Specifically, defendants argue that La.R.S. 9:3552 is clear in the requirement, in part, that written notice be given to the creditor by certified mail.
La.R.S. 9:3552 is penal in nature and must therefore be given strict construction. *1007 Under this statute if a court finds that an extender of credit has violated a provision of the Consumer Credit Law intentionally or as a result of error not in good faith, the consumer may recover any loan finance charges together with three times the amount of such loan finance charge and reasonable attorney's fees. However, the right to recover this civil penalty only accrues after the required notice is given the extender of credit. This requirement may not be circumvented by merely filing suit against a creditor as plaintiff would have us believe. This notice requirement is obviously an attempt to allow a creditor to voluntarily remedy an error without the need for judicial intervention. Once suit is filed, the time for voluntary remedial steps is passed and legal relief has been sought. Therefore, in light of the above and foregoing reasons, plaintiffs may not avail themselves of the penalties provided by La.R.S. 9:3552.
Inasmuch as the plaintiffs failed to give the mandated written notice, the judgment of the trial court must be reversed.
We pretermit discussion of the other assignments of error.
Therefore, for the above and foregoing reasons, the judgment of the trial court is reversed and plaintiffs' suits are dismissed at plaintiffs' costs.
REVERSED AND RENDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625732/ | 345 S.W.2d 540 (1961)
CITY OF ABILENE, Appellant,
v.
William L. BAILEY et al., Appellees.
No. 3612.
Court of Civil Appeals of Texas, Eastland.
March 24, 1961.
Rehearing Denied May 5, 1961
Eplen, Daniel & Hooper, Abilene, for appellant.
Brooks & Fergus, Abilene, for appellees.
GRISSOM, Chief Justice.
William L. Bailey and others, who own a farm adjacent to the City of Abilene's *541 sewage disposal plant, sued the city for damages caused by obnoxious odors and insects coming from said plant onto their farm and causing a depreciation in its market value. Plaintiffs alleged that the city, in March, 1959, built a sewage disposal plant on a tract of land separated from plaintiffs' 237.4 acre stock farm, where they resided, by only a 50 foot county road and proceeded to discharge the city's sewage upon its land, producing the results stated and causing a diminution in the value of plaintiffs' farm.
The city excepted to plaintiffs' petition because it showed the city was engaged in a governmental function in operating its sewage plant, for which reason it was not liable; that the petition contained no allegations that defendant's plant was a nuisance, or that the city was guilty of negligence, or that it operated its disposal plant in an unreasonable manner. The city answered to the effect that before it constructed said plant it submitted its plans to the State Department of Health, which approved them; that in building and operating the plant it acted as an agent and arm of the State in performance of a duty imposed on it by law and that it was exercising a governmental function for the protection of the health of the public; that its plant was operated under the supervision of a sewage plant operator who held a certificate of competency from the State Department of Health; that before it built the plant its City Manager consulted the State Department of Health; that it employed a recognized firm of engineers, who were qualified to build said plant and that it was built under the supervision and in accord with the plans and specifications approved by the State Department of Health.
A jury found that (1) the city's sewage disposal operation caused objectionable matter, such as noxious fumes, odors or insects, to come upon plaintiffs' farm; that (2) such odors, etc., caused a depreciation in the market value of plaintiffs' farm; that (3) the damage is permanent; that (4) immediately prior to the beginning of such depreciation plaintiffs' farm had a reasonable market value of $62,125 and (5) that immediately after completion of such depreciation, it had a value of $33,500. The court rendered judgment for the depreciation so found. The city has appealed.
The city contends, among other things, that (1) the court erred in failing to hold that the city, in constructing and maintaining its plant in compliance with the law and with the approval of the State Department of Health, was engaged in a governmental function and, therefore, not liable to plaintiffs; (2) that the court erred in failing to hold that plaintiffs could not recover because they did not allege, prove and obtain a jury finding that the city was guilty of negligence; (3) that the court erred in refusing to hold that plaintiffs could not recover because they failed to allege, prove and obtain a finding that the city operated its plant in an unreasonable manner, so as to unnecessarily injure plaintiffs' land, and that the court erred in rendering judgment for plaintiffs because they failed to allege, prove and obtain a finding that the city operated its plant in such a manner as to constitute a nuisance.
Article 1, Section 17, of the Constitution of Texas, Vernon's Ann.St., provides that no person's property shall be damaged, or applied to public use, without adequate compensation being paid. In Brewster v. City of Forney, Tex.Com. App., 223 S.W. 175, it was held that a city was responsible for damages to land arising out of the erection and operation of a sewage disposal plant. It said that if such plant could not be constructed and operated, regardless of the necessity therefor, without injury to the property of a citizen, the city must stand the loss and that it is bound to compensate the citizen for the damages suffered. In that case a jury found that sewage collected near plaintiff's home; that offensive odors arose by reason of the operation of the system; that, though the plant was properly constructed and operated, stagnant water at the plant generated *542 mosquitoes and drew files to plaintiff's residence; that conditions created by the city's plant made plaintiff's place undesirable as a residence and less valuable. The court held the city was liable for damages. Both the Commission and the Supreme Court said that the jury had found facts which established that the operation of the city's plant was a nuisance. It is contended, and properly so, that when this decision was made our Supreme Court had held that a city engaged in disposition of sewage was performing a proprietary function, while it now holds that same is a governmental function. Nevertheless, we think a city is liable for damage to land, thus inflicted, by virtue of Article 1, Section 17, of the Constitution of Texas, even though it is engaged in a governmental function. State v. Hale, 136 Tex. 29, 146 S.W.2d 731, 736; 38 Am.Jur. 265, 277; City of Amarillo v. Ware, 120 Tex.456, 40 S.W.2d 57, 60; Hidalgo County Water Improvement Dist. No. 2 v. Holderbaum, Tex.Com.App., 11 S.W.2d 506, 507; City of Austin v. Howard, Tex.Civ.App., 158 S.W.2d 556, 564 (Ref.W.M.); 63 C.J.S. Municipal Corporation §§ 1219, 1235, pp. 964, 976; State v. Sparks, Tex.Civ.App., 296 S.W.2d 609, 611; State v. Malone, Tex.Civ. App., 168 S.W.2d 292, 299, (Ref.W.M.).
In Gainesville, H. & W. R. Co. v. Hall, 78 Tex. 169, 14 S.W. 259, the defendant asked the court to give the following charge, which was refused:
"The mere construction and operation of the railroad of defendant upon land adjoining plaintiff's premises, and in the proper and usual manner in which railroads are built and operated, was not an unlawful act, nor could it be denominated a nuisance, and the inconvenience to plaintiff or the owner of the premises from such vibration, noise, and smoke as were incident to the ordinary operation of the railroad, by running from four to six trains per day past plaintiff's premises, does not give him a cause of action for damages, or depreciation in the value of his premises occasioned thereby. You are therefore instructed to return a verdict for the defendant."
The court charged the jury to find for the plaintiff if his property had been damaged by the construction and operation of the railroad, provided such damage resulted from vibration, smoke, noxious vapors and the noise of passing trains, but that it should not take into consideration any damage plaintiff suffered in common with the community generally. The Supreme Court approved the charge given and sustained the action of the trial court in refusing said requested charge. It held that under Article 1, Section 17, of the Texas Constitution the plaintiff could recover for diminution in the value of its land so caused. It further held that a natural person carrying on a business upon his own land which, by reason of noise, smoke and vibration, materially diminished the enjoyment of the property of another, and rendered it less desirable as a residence, and depreciated its market value is a nuisance.
Appellant's principal contention is correctly answered, we think, by the following excerpts from 16 Tex.Jur. 895, 897:
"* * * since the present constitutional provision directs that compensation shall be payable for property damaged, the presence of all the factors leading the court to conclude that the nuisance has been `legalized' does not exonerate the defendant from this liability. Nor does the necessity of the work, from the standpoint of the interests of the public, have any bearing on the right of the injured party to compensation for the nuisance; it is but a matter inclining the court to regard the nuisance as legalized so as to preclude the grant of injunctive relief.
"The effect of the legislative authority is to make the work lawful; it cannot impair the constitutional right *543 to compensation. And, as we have seen, if the legislature in authorizing the work should attempt to negative the right to compensation, this would be unconstitutional.
* * * * * *
"Thus it seems that the word `legalized' when used with reference to a nuisance now has the restricted meaning that the work constituting the nuisance is not enjoinable, and that the damages recoverable are limited to damages to property in terms of the constitution."
See also State v. Hale, 136 Tex. 29, 146 S.W.2d 731 and Stone v. City of Wylie, Tex.Com.App., 34 S.W.2d 842.
In Houston & T. C. R. Co. v. Davis, 45 Tex. Civ. App. 212, 100 S.W. 1013, 1014 (Writ Ref.), the court referred to Gainesville H. & W. Railway Co. v. Hall, 78 Tex. 169, 14 S.W. 259, 9 L.R.A. 298, and Daniel v. Ft. Worth & R. G. Railway, Tex.Civ. App., 69 S.W. 198, and in answering a contention that the plaintiff could not recover for damage to his land caused by activities on adjoining property unless he showed the railway company's track was used in such a manner that it constituted a nuisance, said:
"* * * We think this contention is refuted by Gainesville H. & W. Railway Co. v. Hall, and Daniel v. Ft. Worth & R. G. Railway, supra. Both these cases recognize the right to recover for property taken or damaged for a public purpose regardless of any question of negligence or nuisance."
City of Temple v. Mitchell, Tex.Civ. App., 180 S.W.2d 959, 960, was a suit for damages against a city because its sewage disposal plant caused odors and flies to invade plaintiff's farm and cause a depreciation in its value. Judge McClendon said:
"The suit was maintainable therefore only upon the theory that the plant in its location and operation constituted a damaging of Mitchell's property for a public use, Tex.Const. Art. 1, § 17, Vernon's Ann.St.; and since, as we hold, the facts alleged were sufficient to support recovery upon that theory, it is not material that they were characterized in the pleadings and in the trial court's findings as a nuisance."
In Blair v. Waldo, Tex.Civ.App., 245 S.W. 986, the court said that under our constitutional provision a city was liable for damaging private property for a public use by constructing a sewer line, regardless of negligence.
In Hodges v. Town of Drew, 172 Miss. 668, 159 So. 298, the Supreme Court of Mississippi held that a constitutional prohibition against damaging private property for public use applied to cities and that they were liable therefor, regardless of whether they were exercising a governmental function.
Appellant contends that plaintiffs cannot recover because their damage was suffered in common with the community generally. We think this contention is refuted by the decision of our Supreme Court in Powell v. Houston & T. C. R. Co., 140 Tex. 219, 135 S.W. 1153, 1155, which is still cited as authority by our Supreme Court, wherein the court said:
"* * * the Court of Civil Appeals placed their decision upon the additional ground that the depreciation in the value of the lot, by reason of the condition of the said crossing, is such as was suffered by all others owning property in his vicinity. This proposition can best be answered by quoting from Railway Co. v. Golberg, 68 Tex. 688, 5 S.W. 826, as follows: `The fact that the injury was common to all other property holders on the street would not bar the plaintiff's right of recovery. The plaintiff sues for a special damage to his own property by reason of defendant's having *544 impaired the use of the street upon which it fronts. It does not affect his right to recovery that the owners of property fronting on the same street have been injured in the same manner. This is a loss peculiar to plaintiff's property, and not one he suffers in common with the community generally where the property is situated. Gulf, C. & S. F. Ry. Co. v. Fuller, 63 Tex. 467.'
"The law is so clearly stated by Judge Gaines in the above extract that we are unable to add any force to the reasoning which supports the conclusion announced. The depreciation of the value of the lot which belonged to Powell does not affect others who might own property in the same neighborhood, neither does the depreciation in the value of the property of others affect Powell. Therefore the injury suffered by Powell is special and personal to himself and does not come within the rule which is invoked by the Court of Civil Appeals."
The applicable rule on this point is stated in 16 Tex.Jur. (Revised Edition) 455 as follows:
"A public work usually disturbs property values in the vicinity, some owners enjoying an increment and others suffering a depreciation in the value of their respective properties. This depreciation is `community damage' which is the opposite of `special damage'. On the other hand, where a proprietary right has been violated, it is no answer to the claim for compensation that the proprietary rights of other members of the community have likewise been infringed. Accordingly, in the case of a claim by an abutting owner for damages resulting from the extraordinary use of a street, the fact that the injury is common to all other property holders on the street does not bar the plaintiff's right of recovery.
In such a case, the plaintiff sues for a special damage to his own property by reason of defendant's having impaired the use of the street upon which it fronts. His right to recovery is not affected by the fact that the owners of property fronting on the same street have been injured in the same manner. Such a loss is peculiar to the plaintiff's property, and is not one that he suffers in common with the community generally where the property is situated."
See also Gulf, C. & S. F. Ry. Co. v. Fuller, 63 Tex. 467; 40 A.L.R. 2d 1180; Gainesville, H & W R Co. v. Hall, 78 Tex. 169, 14 S.W. 259, 9 L.R.A. 298; Gulf, C. & S. F. R. Co. v. Eddins, 60 Tex. 656 and State v. Clark, Tex., 336 S.W.2d 612, 617.
Under Article 1, Section 17 of the Constitution of Texas it is no defense that a City in damaging the property of a citizen was acting in a governmental capacity, or that it was not guilty of negligence. Cases are cited above which hold that proof of a nuisance is not required, however, that question is not material here because, regardless of whether such proof is or is not required, our Supreme Court has held, in effect, that the findings here that odors and insects were cast upon plaintiffs' farm by the city's disposal plant causing a diminution in the value of plaintiffs' land is a finding of a nuisance. Gainesville, H. & W. R. Co. v. Hall, 78 Tex. 169, 14 S.W. 259, 260, 9 L.R.A. 298, and Brewster v. City of Forney, Tex.Com.App., 223 S.W. 175, 178.
We are indebted to appellant for excellent briefs. We might be inclined to agree with some of its contentions as an original proposition but we think the law has been determined to the contrary. That which has been said also compels the overruling of appellant's 5th and 6th points. Appellant's remaining points complain of the admission of evidence. They have been considered. We conclude that reversible error is not shown. The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625712/ | 996 F. Supp. 628 (1998)
Victor BURCIAGA, Sr.
v.
Togo D. WEST, Jr., Secretary of the Army.
No. EP-97-CA-188-DB.
United States District Court, W.D. Texas, El Paso Division.
March 4, 1998.
Order Amending Opinion on Denial of Reconsideration April 1, 1998.
*629 *630 Alejandro Soto, El Paso, TX, for Plaintiff.
Kurt A. Didier, Special Assistant U.S. Attorney, El Paso, TX, for Defendant.
MEMORANDUM OPINION AND ORDER
BRIONES, District Judge.
On this day, the Court considered Defendant's Motion for Summary Judgment filed on January 15, 1998, in the above-captioned cause. Plaintiff filed a Response on February 2, 1998. Defendant then filed a reply letter to Plaintiff's Response on February 4, 1998. In turn, Plaintiff filed a reply to Defendant's reply letter on February 17, 1998.[1] After due consideration, the Court is of the opinion that the Motion should be granted for the reasons that follow.
FACTS
Plaintiff is a Hispanic male who is and was at least the age of 40 at all times relevant to this Motion. He was employed as a Motor Vehicle Operator, Wage-Grade 7 ("WG-7"), in the Fort Bliss Transportation Division Motor Pool, in El Paso, Texas. He first became employed with the Department of the Army ("Defendant") in September 1984. In July through August of 1992, Plaintiff underwent abdominal surgeries. As a result of these surgeries, Dr. S.M. Alavi indicated in a Disability Certificate dated September 24, 1992, that Plaintiff was restricted from lifting over 40 pounds "until further notice."
Plaintiff asserts, and the Court takes as true for purposes of this Motion, that he complained of ethnic slurs made by others while at work. He made the complaints to his union as early as November 1993 and as recently as early March 1996. Plaintiff's supervisors were not aware of these complaints at the time they were made.
On April 1, 1994, Defendant determined that Plaintiff's position, along with three other similar positions, would be abolished under a reduction-in-force ("RIF") program.[2] Like Plaintiff, the three other persons whose positions were to be abolished were Hispanic. Defendant placed Plaintiff in an RIF Avoidance Placement Program ("RAPP"), in an effort to find him another position. Under the RAPP, Plaintiff temporarily was assigned to a WG-2 Laborer position, effective October 2, 1994, pursuant to a Statement of Understanding signed and dated by Plaintiff on September 29, 1994. Through the Statement of Understanding, Plaintiff represented that he understood "that a medical examination [was] required for [his] placement into this position and that failure to provide complete and accurate information regarding [his] medical condition can serve as a basis for separation from Federal Service." Plaintiff never took the physical because, he avers in an affidavit dated June 28, 1996, he "was never advised formally that [he] was to take the physical exam to determine his lifting capability for RIF purposes."[3]
By memorandum dated February 2, 1995, Defendant informed Plaintiff that he would be demoted to the position of WG-6 Motor Vehicle Operator pursuant to the RIF. Defendant stated that the demotion would become effective on June 11, 1995. Defendant also attached a position description to the notice which indicated that WG-6 Motor Vehicle Operators were required to handle objects *631 up to 50 pounds[4] while loading and unloading cargo from vehicles.
While performing under his laborer assignment on February 13, 1995, Plaintiff alleges he sustained a work-related injury. Because of this injury, he filed a claim on February 21, 1995, for benefits with the Office of Worker's Compensation Programs ("OWCP"). Also in connection with this injury, Plaintiff underwent surgery on April 5, 1995, performed by Dr. Alavi. By Compensation Order dated April 26, 1995, the OWCP denied Plaintiff's claim for benefits. Through a Work Restriction Evaluation dated May 8, 1995, Dr. Alavi indicated that Plaintiff could lift "0-10 lbs" for "0" hours per day as a result of the injury and surgery; that Plaintiff should limit his sitting, walking, bending, and standing to intermittent frequency for anywhere from one to three hours per day; and that Plaintiff should not squat, climb, kneel, or twist. Dr. Alavi also indicated that Plaintiff could reach or work above the shoulders, perform simple grasping, and work eight hours a day. Dr. Alavi opined in the Evaluation that Plaintiff would not need vocational rehabilitation to return to work.[5]
In a notice to Plaintiff dated June 9, 1995, Defendant made the following assertions. First, Defendant canceled Plaintiff's demotion of February 2, 1995 (wherein Plaintiff was demoted to the position of WG-6 Motor Vehicle Operator) because his medical examination (presumably Dr. Alavi's May 8 report) indicated that Plaintiff had physical limitations that Defendant was unable to accommodate. Second, Defendant stated that Plaintiff still was subject to the RIF. Third, Defendant noted that while Plaintiff had assignment rights to a vacant position or to a position occupied by an employee with a lower retention standing, Defendant had reviewed his qualifications and determined that no positions were available that satisfied Plaintiff's assignment rights. Fourth, Plaintiff would be allowed to continue under a duty status in his then-present position (presumably as a WG-2 Laborer) until his separation was effected under the RIF on October 13, 1995. Finally, Defendant indicated that it would continue trying to place Plaintiff in a position under his assignment rights until October 13, 1995, when the RIF would become effective.
As to Defendant's efforts to place Plaintiff in a position, Plaintiff was considered for eighteen alternative positions. These include three Motor Vehicle Operator positions, fourteen Materials Handler positions, and one GS-5 Firefighter position. All of these positions, however, required lifting in excess of 45 pounds or strenuous physical activity. Defendant did not consider Plaintiff for placement in clerical positions because his personnel file did not show that he had progressively responsible clerical office experience or other similar work.[6] Such experience would have shown an ability to acquire particular knowledge and skills required to perform clerical work. Also, Plaintiff's file did not reveal that he could type, which was required for the clerical and administrative positions. Plaintiff returned to work on June 19, 1995.
In a notice to Plaintiff dated June 20, 1995, Defendant stated that it was offering him a different set of duties to accommodate his physical limitations.[7] These newly-offered duties included setting appointments for and administering driving tests. Plaintiff accepted the light-duty assignment and was thus occupied from June 21 to October 13, 1995, when he was separated under the RIF. By letter dated June 26, 1995, Dr. Alavi notified *632 Defendant "that effective September 15, 1995. [Plaintiff's] medical restrictions such as (squatting, kneeling, twisting, climbing, intermittent sitting, walking, standing and bending) will no longer apply.... [H]is lifting and carrying restrictions is [sic] 20-25 lbs. because of his past medical history."
On August 30, 1995, Plaintiff filed a formal Equal Employment Opportunity ("EEO") complaint regarding his separation of October 13, 1995, under the RIF. Plaintiff alleged that his removal under the RIF was discriminatory because it was based on his national origin, his mental and physical disabilities, and in reprisal due to complaints he had filed with his union regarding ethnic slurs in the workplace, overtime, and the RIF process.[8] Plaintiff also filed an appeal with the Merit Systems Protection Board ("MSPB") on November 1, 1995. The MSPB, however, dismissed the appeal without prejudice as premature, because Defendant had not issued a final decision on the EEO complaint and 120 days had not elapsed. By letter dated November 6, 1995, Plaintiff requested to amend his formal EEO complaint to allege age as an additional basis for discrimination.
Plaintiff then filed a timely appeal with the MSPB on January 11, 1996. Defendant, in turn, submitted a copy of its Office of Complaint's Investigation Report of Investigation, dated January 22, 1996, to Plaintiff. The report concluded that "management provided legitimate, non-discriminatory explanations for the contested actions, management's explanations were not shown to be pretext to mask prohibited discrimination." The report further stated that Defendant attempted to use Plaintiff for any duties that could accommodate his known, physical limitations.
By decision dated May 10, 1996, the MSPB, through Judge Michael Daugherty, concluded that, 1) the RIF was bona fide; 2) Defendant properly defined Plaintiff's competitive area; 3) Plaintiff's position was properly abolished and that he was properly released from his competitive level; 4) Defendant properly applied the RIF regulation; and 5) Plaintiff did not prove discrimination on the basis of disability, national origin, or age. Although Plaintiff appealed this decision to the full MSPB on October 22, 1996, the three-member MSPB denied Plaintiff's petition for review, stating that the MSPB decision was final. Plaintiff subsequently appealed the MSPB decision to the Equal Employment Opportunity Commission ("EEOC"), which also concurred with the MSPB. The EEOC, in its decision dated April 3, 1997, indicated that it considered Plaintiff "disabled" on account of his diabetes and hypertension which were "poorly controlled." The EEOC, however, did not find Plaintiff a "`qualified' disabled person." The EEOC concluded that Plaintiff did not prove discrimination based on national origin, age, disability, and/or reprisal. Plaintiff filed the Complaint now before the Court on May 5, 1997.
DISCUSSION
Plaintiff brought his Complaint under § 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C.A. § 791 et seq. (West 1985 & Supp.1997) ("Rehabilitation Act"); Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. § 2000e et seq. (West 1994 & Supp.1997) ("Title VII"); and the Age Discrimination in Employment Act of 1973, as amended, 29 U.S.C.A. § 621 et seq. (West 1985 & Supp.1997) ("ADEA"). Specifically, Plaintiff alleges that he as been discriminated against by Defendant based on his age, national origin, and disability, resulting in his termination from employment. Plaintiff further avers retaliation for participating in the Equal Employment Opportunity Process. Finally, Plaintiff, in his Response filed on February 2, 1998, raises several non-discriminatory claims for the first time in this cause.
Defendant has moved for summary judgment on all claims. It argues that Plaintiff cannot prove the essential elements of his case under any of the proffered theories. Defendant further asserts that there are no genuine issues of material fact to adjudicate and therefore requests the Court to enter judgment in its favor. After first reviewing *633 the applicable standards under a motion for summary judgment, the Court will address in turn the various theories upon which Plaintiff bases his Complaint and which Defendant maintains are untenable under the facts recited above. The Court then will discuss briefly, and hypothetically, Plaintiff's non-discrimination claims which are not properly before the Court.
Standards on Motion for Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure ("Rule 56") authorizes a motion for summary judgment so that actions which fail to present any genuine issue of material fact may be disposed of before trial. The standard for granting summary judgment requires that there be no genuine issue of material fact and that the moving party be entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 2509-10, 91 L. Ed. 2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S. Ct. 1348, 1355, 89 L. Ed. 2d 538 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). Indeed, Rule 56(e) specifically requires that,
[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.
When making a determination under Rule 56, factual questions and inferences are viewed in a light most favorable to the nonmovant. Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir.1994). That is, the Court examines the pleadings, affidavits, and other evidence introduced in the motion, resolves any factual doubts in favor of the nonmovant, and determines whether a triable issue of fact exists. Aulds v. Foster, 484 F.2d 945, 946 (5th Cir.1973). To be sure, the Court's duty under a motion for summary judgment "is confined ... to issue-finding [and not] to issue-resolution." Gallo v. Prudential Residential Services, 22 F.3d 1219, 1224 (2d Cir.1994).
Under summary judgment in employment discrimination cases, the focus is on whether a genuine issue exists as to whether the defendant intentionally discriminated against the plaintiff. Grimes v. Texas Dept. of Mental Health, 102 F.3d 137, 139 (5th Cir.1996) (citing LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 447-48 (5th Cir.1996)). Thus, in response to motions for summary judgment, it is imperative that the non-moving party "present evidence not just conjecture and speculation that the defendant retaliated and discriminated against plaintiff ...." Id. at 140 (Title VII case).
A different standard of review, however, is applicable to the findings of the MSPB. First of all, had Plaintiff properly challenged the MSPB's decision in his Complaint, the Court would have had jurisdiction over the matter because this cause would have contained a mix of discrimination and non-discrimination claims. See, e.g., Jones v. Secretary, Dept. of Army, 912 F. Supp. 1397, 1413 (D.Kan.1995). Otherwise, the Fifth Circuit Court of Appeals would have been the proper forum for a purely non-discrimination cause of action challenging the MSPB's decision. See Jones, 912 F.Supp. at 1413; 5 U.S.C.A. § 7703(c) (West 1996 & Supp.1997). In any event, the findings of the MSPB must be affirmed unless they are arbitrary, capricious, not in accordance with law, obtained without procedures required by law, rule or regulations, or unsupported by substantial evidence. See Jones, 912 F.Supp. at 1413; 5 U.S.C.A. § 7703(c). Again, this standard would have applied to a challenge of the MSPB's decision had such a cause of action been raised properly, as discussed below.
The Rehabilitation Act
The Rehabilitation Act prohibits discrimination against otherwise qualified individuals with handicaps in programs that receive federal assistance. See 29 U.S.C.A. § 794(a) (West 1985 & Supp.1997). The purpose of the Act is to ensure that handicapped persons are treated the same as those without disabilities. Chandler v. City of Dallas, 2 F.3d 1385, 1389 (5th Cir.1993); Chiari v. City of League City, 920 F.2d 311, 315 (5th Cir. *634 1991). The analysis for a claim brought under the Rehabilitation Act is straightforward. See Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 722 (2d Cir.1994) (citing Gallo, 22 F.3d at 1224-25).[9] The plaintiff bears the initial burden of establishing a prima facie case. Once this burden is met, the burden then shifts to the employer. The employer's burden is to "`articulate a legitimate non-discriminatory reason for discharging the employee'" that is unrelated to the handicap. Heilweil, 32 F.3d at 722 (quoting Gallo, 22 F.3d at 1224-25). If the employer meets this burden, the burden then shifts to the plaintiff to establish that the reason provided by the employer is a pretext for discrimination. Id. However, if the employer uses the handicap as the reason for the adverse employment action, then its burden is "`to rebut the inference that the handicap was improperly taken into account by going forward with evidence that the handicap is relevant to qualifications for the position.'" Heilweil, 32 F.3d at 722 (quoting Doe v. New York Univ., 666 F.2d 761, 776 (2d Cir.1981)). In the end, however, "[t]he plaintiff bears the ultimate burden of proving by a preponderance of the evidence that she is qualified despite her handicap." Heilweil, 32 F.3d at 722.
To established a prima facie case under the Rehabilitation Act, a plaintiff must prove that, 1) he was an "individual with handicaps";[10] 2) he was "otherwise qualified"; 3) he worked for a "program or activity" that received federal financial assistance; and 4) he was adversely treated solely because of his handicap. Chandler, 2 F.3d at 1390; Chiari, 920 F.2d at 315. The Act defines an "individual with handicaps" as a person "who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment." 29 U.S.C.A. § 706(8)(B) (West 1985 & Supp. 1997); see also Chandler, 2 F.3d at 1390. A physical impairment is,
any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; skin; and endocrine....
45 C.F.R. § 84.3(j)(2)(i) (1998); see also Chandler, 2 F.3d at 1390. The regulations also indicate that a person is regarded as having an impairment if he,
(A) has a physical or mental impairment that does not substantially limit major life activities but that is treated by [an employer] as constituting such a limitation;
(B) has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(C) has none of the [above described impairments] but is treated by [am employer] as having such an impairment.
45 C.F.R. § 84.3(j)(2)(iv) (1998).
Major life activities include, "caring for one's self, performing manual tasks, walking, *635 seeing, hearing, speaking, breathing, learning, and working." 45 C.F.R. § 84.3(j)(2)(ii) (1998). Major life activities also could include "lifting, reaching, sitting, or standing." Dutcher, 53 F.3d at 726 n. 7 (ADA case). Whether an impairment substantially limits a major life activity is determined "in light of (1) the nature and severity of the impairment, (2) its duration or expected duration, and (3) its permanent or expected permanent or long-term impact." Id. at 726. Thus, determining whether one is a handicapped person requires a two-prong inquiry. First, a court must determine whether the plaintiff has a physical or mental impairment. If so, the court must then decide whether such impairment substantially limits one or more of the plaintiff's major life activities. Heilweil, 32 F.3d at 722.
In the case at bar, even if the Court were to assume that Plaintiff has a physical or mental impairment within the scope of the Rehabilitation Act, he still must show that his condition affects a major life activity at the time he was separated under the RIF. See Heilweil, 32 F.3d at 723. In Sherrod v. American Airlines, Inc., the Fifth Circuit found no substantial limitation in the major life activities where the plaintiff showed only that she was limited from "heavy lifting, not the routine duties of daily living." 132 F.3d 1112, 1120 (5th Cir.1998) (ADA case). There, the plaintiff could lift only "forty-five pounds occasionally and twenty pounds frequently." Id. The Fifth Circuit found evidence of this lifting limitation insufficient for a reasonable jury to find a substantial limitation on a major life activity. Id. Similarly in Ray v. Glidden Co., where evidence showing that the plaintiff could not lift 44 to 56 pounds continuously all day but could do so for one to three and one-half hours per day, the Fifth Circuit found there was no substantial limitation in a major life activity. 85 F.3d 227, 229 (5th Cir.1996) (ADA case). By comparison, Plaintiff's lifting restriction was, at first, temporarily 40 pounds with certain limits on bodily movement, and finally 20 to 25 pounds, with no other restrictions on bodily movement. The Court finds these physical restrictions do not constitute a substantial limitation of a major life activity See Hamm, 51 F.3d at 725 (intermittent, episodic impairments are not disabilities); Rakestraw v. Carpenter Co., 898 F. Supp. 386, 390 (N.D.Miss.1995) (same).
Further, no case law was cited to support Plaintiff's assertion that a person with diabetes is handicap per se. Cf. Chandler, 2 F.3d at 1391 (court refused to address the issue of whether a diabetic is disabled per se implicitly under the Rehabilitation Act where pursuant to the ADA a diabetic is deemed disabled explicitly). And as to Plaintiff's allegation that he suffers from PTSD and hypertension, Plaintiff did not present evidence suggesting a genuine issue of fact regarding whether these alleged conditions substantially limit one or more major life activities. The Court thus finds that Plaintiff has not met his burden of showing this element of his prima facie case.
The Court having found that Plaintiff's condition does not affect a major life activity, it similarly finds no evidence that he has a record of impairment. Plaintiff has not shown "that at some point in the past, [he] was classified or misclassified as having a mental or physical impairment that substantially limits a major life activity." See Sherrod, 132 F.3d at 1120-21. Plaintiff argues that because the EEOC considered him as having a disability in its April 3, 1997, decision, there is a record of an impairment. However, this argument fails for two reasons. First, the Court finds that the record upon which the EEOC relied does not show an impairment that substantially limits a major life activity. Second, even if the record did show such an impairment, Plaintiff also must show that Defendant relied on this record, which Plaintiff has failed to do. See Sweet v. Electronic Data Systems, Inc., No. 95civ.3987, 1996 WL 204471, at *7 (S.D.N.Y.). Moreover, even if Plaintiff established that he had a record of impairment, the evidence does not reveal a genuine issue as to whether the impairment in fact substantially limits a major life activity. See Sherrod, 132 F.3d at 1121.
Plaintiff also was not treated as having a substantially limiting impairment. Defendant initially planned to reassign Plaintiff to the vacant WG-2 Laborer position. The *636 reassignment did not occur because of Plaintiff's lifting restriction and his inability to perform the job. Even after discovering that Plaintiff was not physically qualified for the proposed reassignment. Defendant continued to consider Plaintiff for about eighteen other positions to which he had assignment rights by virtue of his seniority. This demonstrates convincingly to the Court that Defendant did not view Plaintiff as having a substantially limiting impairment and consequently that there is no genuine issue of material fact in this regard.
Even if the Court were to find that Plaintiff did have a physical impairment that substantially limits one or more of his major life activities, Plaintiff still must show that he was otherwise qualified. Heilweil, 32 F.3d at 722; Chiari, 920 F.2d at 315; Leckelt v. Board of Commissioners, 909 F.2d 820, 827 (5th Cir.1990). This requires a two-step analysis. First, the Court must examine whether Plaintiff could perform the "essential functions" of his job. Chiari, 920 F.2d at 315; see also School Board of Nassau County, Florida, v. Arline, 480 U.S. 273, 287 n. 17, 107 S. Ct. 1123, 1131 n. 17, 94 L. Ed. 2d 307 (1987). Second, if the Court finds that Plaintiff is unable to perform the essential functions, the Court must then determine whether Plaintiff proved that Defendant could have made a "reasonable accommodation" to enable him to perform his job. See Chiari, 920 F.2d at 315; see also Arline, 480 U.S. at 287 n. 17, 107 S.Ct. at 1131 n. 17.[11]
The record shows that Plaintiff's lifting restrictions disqualified him from the permanent position Defendant offered him, namely, the WG-6 Motor Vehicle Operator position. The other eighteen positions considered for Plaintiff also required moderate to heavy lifting, which, again, Plaintiff could not perform because of his lifting limitations. There is nothing before the Court to suggest that these lifting requirements are not legitimate. Further, Plaintiff was not considered for clerical positions because he could not type and because he did not have relevant experience. The Court thus finds that Plaintiff cannot perform the essential functions of the available offered positions and that there is no genuine issue as to this matter.
Likewise, there is no evidence before the Court to show that Plaintiff could be reasonably accommodated. Based on the record, accommodation would have required eliminating most if not all of the lifting requirements of the positions, finding an entirely new job for Plaintiff, or creating a new position for him, something which Defendant is not required to do. See Chiari, 920 F.2d at 318 (employer not required to fundamentally alter the job and, after accommodation, employee still must be able to perform the essential functions of the job); Arline, 480 U.S. at 289 n. 19, 107 S.Ct. at 1131 n. 19 (employer not required to find or create a new job, but cannot deny employment that is reasonably available).
Even had Plaintiff shown that he was handicapped for purposes of the Rehabilitation Act and that he was otherwise qualified or could have been accommodated, he still must show that the challenged employment action was motivated solely by his handicap. Chandler, 2 F.3d at 1390; Leckelt, 909 F.2d at 825. The evidence before the Court, however, falls far short of supporting such a finding or even creating a genuine issue of fact. The Court therefore concludes that because Plaintiff has failed on several fronts to establish a prima facie case to raise a *637 genuine issue of material fact, he cannot maintain a cause of action under the Rehabilitation Act.
Title VII
Plaintiff also alleges a violation of Title VII as to his national origin.[12] The Supreme Court established the evidentiary framework for Title VII claims in McDonnell Douglas Corp. LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 (5th Cir.1996). A plaintiff suing under Title VII bears the initial burden to prove a prima facie case of discrimination by a preponderance of the evidence. McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. at 1824. The plaintiff must show: 1) that he is a member of a protected class; 2) that he sought and was qualified for an available employment position; 3) that he was rejected for that position; and 4) others who were not members of the protected class remained in similar positions. Id. at 802, 93 S.Ct. at 1824; Vaughn v. Edel, 918 F.2d 517, 521 (5th Cir.1990). Once established, the burden of production then shifts to the defendant to articulate a legitimate, non-discriminatory reason for the contested employment action. McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. at 1824; Vaughn, 918 F.2d at 521. If the defendant comes forward with a credible reason which would support a finding that the challenged action was non-discriminatory, the inference raised by the plaintiffs prima facie case is defeated. Burdine, 450 U.S. at 255 and n. 10, 101 S.Ct. at 1094-95 and n. 10. The focus then shifts to the ultimate question of whether the defendant intentionally discriminated against the plaintiff. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 113 S. Ct. 2742, 2749, 125 L. Ed. 2d 407 (1993).
In this cause, it is clear that Plaintiff is a member of a protected class under Title VII. It is also apparent that Plaintiff was separated from employment pursuant to the RIF. Plaintiff, however, has not shown that he was qualified for an available employment position, as discussed earlier. Further, it is unclear whether another person not a member of the protected class remained in a similar position.
Even if the Court were to find that Plaintiff established a prima facie case, Defendant has articulated a legitimate non-discriminatory reason for the employment action, namely, the RIF. This would then shift the focus to whether Defendant intentionally discriminated against Plaintiff. The Court finds no tenable evidence showing a genuine issue of fact that the legitimate non-discriminatory reason for the adverse employment action was merely pretextual. Once again, the Court concludes that the Title VII claim cannot survive summary judgment.
The Age Discrimination in Employment Act
Further, Plaintiff avers Defendant discriminated against him in violation of the ADEA. The ADEA makes it "unlawful for an employer ... to discharge any individual ... because of such individual's age...." 29 U.S.C.A. § 623(a)(1) (West 1985 & Supp. 1997). To establish a prima facie case of age discrimination, the plaintiff "must demonstrate that 1) he was discharged; 2) he was qualified for the position; 3) he was within the protected class at the time of the discharge; and 4) he was either i) replaced by someone outside the protected class, ii) replaced by someone younger, or iii) otherwise discharged because of his age." Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir.1993); see also Gallo, 22 F.3d at 1224.
McDonnell Douglas Corp. and Burdine also provide the analytical framework for an ADEA cause of action in which, as here, there is no direct evidence of age discrimination. See Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 992 n. 3 (5th Cir.1996). First, the plaintiff must establish a prima facie case by a preponderance of the evidence, thereby raising an inference of unlawful discrimination. See Hicks, 509 U.S. at 506, 113 S.Ct. at 2746-47; Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093; McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. at 1824. The burden of production then shifts to the defendant to proffer a legitimate, non-discriminatory reason for the contested employment action. *638 Hicks, 509 U.S. at 506-07, 113 S.Ct. at 2747; Burdine, 450 U.S. at 253, 101 S.Ct. at 1093; McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. The defendant may meet this burden by offering evidence that, "if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." Hicks, 509 U.S. at 507, 113 S.Ct. at 2747. If the defendant meets its burden, the presumption raised by the plaintiff's prima facie case is defeated. Burdine, 450 U.S. at 255 and n. 10, 101 S.Ct. at 1094-95 and n. 10. The plaintiff, however, has the opportunity to show that the defendant's rationale was a pretext for discrimination. See Hicks, 509 U.S. at 507-08, 113 S.Ct. at 2747-48; Burdine, 450 U.S. at 253, 101 S.Ct. at 1093; McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. at 1825.
Here, Plaintiff cannot meet any of the prima facie elements, save age and the fact that he was discharged. First, Plaintiff was not qualified for the positions, as addressed earlier. Second, there is no indication that Plaintiff was replaced by someone outside the protected class or younger, or that Plaintiff was otherwise separated under the RIF because of his age.
Even assuming arguendo that Defendant did establish a prima facie case of age discrimination, the Court finds ample evidence that "would support a finding that unlawful discrimination was not the cause of the employment action." See Hicks, 509 U.S. at 507, 113 S.Ct. at 2747. Nor is there proof of a genuine issue of material fact over whether Defendant's rationale the RIF was a pretext for discrimination. Accordingly, Plaintiffs ADEA claim also must fail.
Retaliation for Protected Activity
Plaintiff further alleges unlawful retaliation for protective activity. The McDonnell Douglas-Burdine burden-shifting analysis, described earlier, is appropriate for claims of unlawful retaliation. Sherrod, 132 F.3d at 1122. To establish a prima facie case of retaliation, Plaintiff must show that, 1) he engaged in a protected activity; 2) an adverse employment action occurred; and 3) a causal connection. Id. at 1122 n. 8; see also, e.g., Long v. Eastfield College, 88 F.3d 300, 305 n. 4 (5th Cir.1996). If the defendant provides a legitimate reason for the adverse employment action, then the plaintiff must put forth enough evidence that would allow a reasonable jury to find that the proffered reason is a pretext for retaliation. Sherrod, 132 F.3d at 1122; see McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. at 1825. Thus, the final issue is whether the employer unlawfully retaliated against the employee because of the activity. Sherrod, 132 F.3d at 1122. The employee must prove that the adverse employment action would not have occurred "but-for" the protected activity. Id. The plaintiff must show retaliation by substantial evidence in order to overcome a motion for summary judgement. Id. Substantial evidence means "evidence of such quality and weight that reasonable and fair-minded [persons] in the exercise of impartial judgment might reach different conclusions." Rhodes, 75 F.3d at 993 (citing Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc)).
Here, Plaintiff has not made a prima facie case of retaliation. To begin, the RIF was unrelated to subsequent protected activity. Plaintiff filed his EEO complaint on August 30, 1995, claiming discrimination and reprisal for the notice of the RIF termination. The notice of RIF termination was issued on June 9, 1995. Thus the RIF notice predates any protected EEO activity. Furthermore, since Plaintiff's supervisors were never aware of prior complaints of ethnic slurs, the challenged employment action could not have been instigated by these complaints. As such, the Court finds Plaintiff has not shown a genuine issue of fact as to the existence of a requisite causal connection between the protected activity and the challenged employment action. Plaintiff therefore has failed to establish a prima facie case of retaliation.
All told, even assuming for argument's sake that Plaintiff established a prima facie case under any of his tendered theories, he still did not rebut the legitimate non-discriminatory reasons for his separation under the RIF. Indeed, as the MSPB decision provides, Plaintiff was subject to a properly executed bona fide RIF; his competitive area was *639 defined properly; his position was abolished and Plaintiff properly released from his competitive level; and Defendant properly applied the RIF regulations that affected Plaintiff, including determinations that he lacked qualifications or had physical limitations that precluded assignment to another position.
Non-discrimination Claims
Having disposed of the more difficult issues above, the Court now turns briefly to Plaintiff's non-discrimination claims raised for the first time in his Response. Defendant asserts that because the Complaint does not allege the non-discrimination matters raised in Plaintiff's Response they cannot be raised now. Nevertheless, Defendant addressed the merits of these issues, arguing that the non-discrimination claims were fully litigated and adjudicated at the administrative level. The Court agrees that the non-discrimination issues raised by Plaintiff fall beyond the scope of the Complaint. As such, the Court sees no need to address at great length the merits of this hypothetical cause of action.
Assuming arguendo that Plaintiff had properly pleaded these matters, the Court still is of the opinion that the MSPB's findings should stand. The Court must up-hold the findings of the MSPB unless they are arbitrary, capricious, not in accordance with law, obtained without procedures required by law, rule or regulations, or unsupported by substantial evidence. E.g., Jones, 912 F.Supp. at 1413; see 5 U.S.C.A. § 7703(c). The evidence now before the Court does not show that the MSPB's decision was arbitrary or capricious. If anything, the record is replete with documents that testify to non-discrimination claims fully and fairly adjudicated at the administrative level, and consistently decided against Plaintiff. There being no reason to dwell further on this matter in dicta, the Court concludes that Plaintiff is bound by the findings of the MSPB.
Accordingly, IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment is GRANTED.
IT IS FURTHER ORDERED that the above-captioned cause is DISMISSED.
AMENDED MEMORANDUM OPINION AND ORDER AND ORDER DENYING MOTION FOR RECONSIDERATION
On this day, the Court considered Plaintiff's Motion for Reconsideration filed on March 16, 1998. Defendant filed a Reply Letter on March 24, 1998. Plaintiff then filed a Reply on March 30, 1998. The Motion pertains to a Memorandum Opinion and Order ("Memorandum Opinion") the Court issued in this cause on March 4, 1998, dismissing Plaintiff's cause in its entirety. After due consideration, the Court is of the opinion that the Motion should be denied and that the Memorandum Opinion should be amended as provided below.
Plaintiff first argues that the Court wrongfully excluded evidence submitted as attachments to his reply letter dated February 17, 1998. The Court does not agree. In the first place, there is no set rule giving parties the right to file reply letters. Whether the Court considers such filings is purely discretionary. As to evidentiary attachments, these should be filed with the original motion for summary judgment or response and not at the eleventh hour as part of a reply letter. Otherwise, the Court would be caught in a cycle of response and counter-response with evidentiary filings ad infinitum. The Court may consider such filings, but only in the form of a motion to file additional evidence, with opportunity given to the opposing side to respond in kind. To be sure, Federal Rule of Civil Procedure 56(e) indicates that the Court "may permit affidavits to be supplemented ..." (emphasis added).
The Court addresses only one other issue raised in the Motion. Plaintiff continues to insist that Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir.1981) controls as to the burden of proof for reasonable accommodation. However, this position belies the negative indirect history of the case. Time and again appellate courts have questioned the efficacy of Prewitt on the issue of who has the burden as to reasonable accommodation, even in cases with federal agency defendants. See Johnson v. Gambrinus Company/Spoetzl Brewery, 116 F.3d 1052, *640 1059 n. 4 (5th Cir.1997) (non-federal agency case; declined to follow Prewitt and placed burden on the plaintiff); Barth v. Gelb, 2 F.3d 1180, 1186 (D.C.Cir.1993) (federal agency case; declined to follow Prewitt and in dicta indicated that the plaintiff has the initial burden and that burden remains with the plaintiff to prove his case by a preponderance of evidence); Borkowski v. Valley Cent. School Dist., 63 F.3d 131, 138 (2d Cir.1995) (non-federal agency case; declined to follow Prewitt and placed initial burden on the plaintiff); Gilbert v. Frank, 949 F.2d 637, 642 (2d Cir.1991) (federal agency case; disagreed with Prewitt that the plaintiff must carry the initial burden of proof); Overton v. Reilly, 977 F.2d 1190, 1194 (7th Cir.1992) (federal agency case; disagreement recognized but not resolved); Woodman v. Runyon, 132 F.3d 1330 (10th Cir.1997) (federal agency case; declined to follow Prewitt and placed burden of production on the plaintiff); see also Mitchell v. Crowell, 966 F. Supp. 1071, 1079 n. 8 (N.D.Ala.1996) (federal agency case; declined to follow Prewitt and placed burden of persuasion on the plaintiff). In particular, the Fifth Circuit indicated in Johnson that it chose to follow those cases that place the burden of proof of showing reasonable accommodation on the plaintiff. 116 F.3d at 1059 n. 4. Further, in Woodman, the 10th Circuit recognized that at the very least, the plaintiff had the initial burden of showing reasonable accommodation. 132 F.3d at 1344; see also Gilbert, 949 F.2d at 642 (plaintiff had initial burden and burden did not shift until the plaintiff established a prima facie case). The Court elects to follow the lead of the Fifth Circuit in Johnson and what the Court believes to be the trend in other circuits, both in federal agency and non-federal agency cases.
The Court is of the opinion that the balance of the arguments raised by Plaintiff in the instant Motion do not raise new or substantive matters sufficient to warrant mention. The forum for these issues lies elsewhere at this juncture of the litigation.
The Court additionally notes that it should amend its Memorandum Opinion with an adjustment to the recitation of law as to the Rehabilitation Act. Specifically, the prima facie case in an action based on Section 501 of the Rehabilitation Act ("Section 501 ") does not necessarily include the element of showing that the "program or activity" receive federal funding. Instead, the prima facie case that a plaintiff must establish under a Section 501 action is, 1) that the plaintiff is a handicapped person within the meaning of the statute; 2) that the plaintiff is otherwise qualified for the job; and 3) that the plaintiff was discriminated against because of the handicap. Woodman, 132 F.3d at 1338. Another necessary adjustment is an acknowledgment that, first, there is a greater burden on the federal government as to its duties with regard to reasonable accommodation and, second, that there is a resulting lessening of the initial burden on the plaintiff in showing reasonable accommodation, in a Section 501 action as compared to an action based on Section 504 of the Act. See, e.g., id. at 1338 n. 6 and 1344.
Even in view of these adjustments, the Court is of the opinion that the findings and analysis in the Memorandum Opinion remain sound. As such, all of Plaintiffs causes of action still fail for the numerous reasons explained therein.
Accordingly, IT IS HEREBY ORDERED that Plaintiff's Motion for Reconsideration is DENIED.
IT IS FURTHER ORDERED that the Memorandum Opinion is amended as provided above.
IT IS FINALLY ORDERED that the Memorandum Opinion shall remain unchanged in all other respects.
NOTES
[1] The Court notes that Plaintiff attached several exhibits to the reply letter. However, because these attachments were filed late, the Court exercised its discretion under Federal Rule of Civil Procedure 56(e) and did not take these attachments into consideration for purposes of the instant Motion. Defendant also submitted for the Court's review a copy of Sherrod v. American Airlines, Inc., 132 F.3d 1112 (5th Cir.1998). Plaintiff then filed a reply letter on February 26, 1998.
[2] There is a dispute as to whether there were four or eight motor vehicle operator positions abolished under the RIF. Defendant asserts eight positions were abolished, with four of these held by Hispanics and the other four held by non-Hispanics. Plaintiff, on the other hand, insists four positions were abolished, all held by Hispanic persons. For purposes of this Motion, the Court will assume that there were four affected workers and that all were Hispanic.
[3] Not all persons were required to undergo the physical exam in connection with the RIF because some individuals unlike Plaintiff were placed into jobs with the same physical requirement as their old position.
[4] There is an issue as to whether the job description requires handling objects up to 100 pounds or 50 pounds. For purposes of this Motion, the Court adopts the 50 pound limit because this is more favorable to Plaintiff's case.
[5] Plaintiff contends that Defendant improperly relied on the May 8 medical restrictions, which he asserts were only temporary.
[6] Defendant asserts it did consider Plaintiff for clerical positions. However, the Declaration (dated February 4, 1998) of Sherry D. Moody, Personnel Management Specialist with Defendant, states that Plaintiff "was not considered for placement in clerical positions based on his experience as documented in his official personnel folder."
[7] Plaintiff also was notified of his entitlement to $14,357.52 in severance pay, to be paid in 29 weekly installments.
[8] Plaintiff also asserts he suffers from diabetes, hypertension, skin rashes, and post traumatic stress disorder ("PTSD"). He first informed management of his PTSD in July of 1995.
[9] The Second Circuit in Gallo applied the familiar three-step burden-shifting analysis developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-25, 36 L. Ed. 2d 668 (1973) and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207 (1981). Gallo is an ADEA case.
[10] The definition of "disability" under the Americans with Disabilities Act ("ADA"), 42 U.S.C.A. § 12102(2) (West 1995 & Supp.1997), is substantially equivalent to the definition of "individual with handicaps" under the Rehabilitation Act. Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 725 n. 4 and 727 n. 14 (5th Cir.1995). In fact, Congress intended that case law developed under the Rehabilitation Act be applicable to the term "disability" as used in the ADA. Id. at 727 n. 14. It follows therefore that case law developed under the ADA also is helpful in interpreting relevant language of the Rehabilitation Act. See Myers v. Hose, 50 F.3d 278, 281 (4th Cir.1995) ("whether suit is filed against a federally-funded entity under the Rehabilitation Act or against a private employer under the ADA, the substantive standards for determining liability are the same."); Hamm v. Runyon, 51 F.3d 721, 725 (7th Cir.1995); see also 42 U.S.C.A. § 12117(b) (West 1995 & Supp.1997) (administrative complaints filed under either the Rehabilitation Act or the ADA should be "dealt with in a manner that avoids duplication of and prevents imposition of inconsistent or conflicting standards for the same requirements."); cf. Chandler, 2 F.3d at 1391 (refusing to rule on the issue of whether provisions in the ADA establishing diabetes as a disability per se also apply to the Rehabilitation Act which does not contain similar language).
[11] The Court acknowledges there is an inconsistency in the Fifth Circuit as to the burden of proof on the reasonable accommodation issue. For instance, in McGregor v. Louisiana State Univ. Board of Supervisors, 3 F.3d 850, 859 n. 11 (5th Cir.1993), the court concluded that in a Rehabilitation Act case regarding higher education, the plaintiff had the burden to prove that his requested accommodations were reasonable. On the other hand, the Fifth Circuit in Prewitt v. U.S. Postal Service, 662 F.2d 292, 308 (1981), found that in a Rehabilitation Act case the employer has the burden of persuasion on the issue of reasonable accommodation. More recently, the Fifth Circuit in Riel v. Electronic Data Systems Corp., 99 F.3d 678, 682 (1996), suggested that the plaintiff bore the burden of proof. Finally, in Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052, 1059 n. 4 (1997), the Fifth Circuit, after recognizing the discrepancy in the case law, explicitly chose to follow the McGregor line of reasoning and thus placed the burden on the plaintiff. The Court now similarly chooses to follow in step the recent trend in the Fifth Circuit of placing the burden of proving reasonable accommodation on the plaintiff.
[12] Title VII prohibits employers from discriminating against employees on the basis of race, color, religion, sex, or national origin. 42 U.S.C.A. § 2000e-2(a) (West 1994 & Supp.1997). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625988/ | 464 So. 2d 1261 (1985)
Glenard CHANEY, Appellant,
v.
STATE of Florida, Appellee.
No. AY-272.
District Court of Appeal of Florida, First District.
February 20, 1985.
Rehearing Denied April 3, 1985.
*1262 Michael E. Allen, Public Defender, Michael J. Minerva, Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., Andrea Smith Hillyer, Asst. Atty. Gen., Tallahassee, for appellee.
SHIVERS, Judge.
Appellant/defendant was charged by information with armed robbery and kidnapping with a firearm. He was convicted by a jury of both offenses. The trial judge sentenced him to four and one half years for the robbery and imposed a concurrent 30-year sentence for the kidnapping conviction. He now appeals the judgment and sentence for kidnapping. We agree with appellant that the conviction and sentence for kidnapping should be reversed, based upon the proper construction of section 787.01(1)(a)2, Florida Statutes, and this court's decision in Friend v. State, 385 So. 2d 696 (Fla. 1st DCA 1980).
The trial court record shows that, on September 1, 1983, appellant and an accomplice (Manning) entered the Plant Ranch Nursery where the victim, Mr. Baker, was employed. While Manning was making a purchase, appellant came from behind Baker and put a gun to his side. Baker was directed to open the cash register and a nearby Coke machine, and the money from both was removed by Manning. Baker was then placed in the bathroom. Baker testified at trial that both men followed him to the bathroom, walking behind him; that he "was requested to be put in the bathroom"; that he could not recall which of the men opened the door; and that the door had a spring device and closed by itself. He testified that he then heard "bags of stuff being placed in front of the door" and that he later identified the bags to be thirty to forty 50-pound bags which had been stacked nearby. After waiting approximately 60 seconds, Baker heard two car doors shut and an engine start. He then struggled for 10 to 15 seconds to open the door and escaped from the bathroom in time to observe the car's tag number. His observation and immediate telephone call to the police resulted in the apprehension of both men.
Manning's trial testimony differed from Baker's in a few details. He testified that appellant was already in the car when the bags were placed in front of the door; that Manning alone placed the bags; and that only two or three 50-pound bags were used. Manning also stated that the purpose for placing Baker in the bathroom was so that he would not be able to observe the car's tag number.
Appellant was subsequently convicted of both armed robbery and kidnapping with intent to commit or facilitate the commission of a felony. Section 787.01(1)(a)2, Florida Statutes. The Florida Supreme Court has recognized that a literal reading of subsection (a)2 would result in finding a kidnapping with virtually every robbery or sexual battery, as these crimes often inherently involve the unlawful confinement of the victim. Mobley v. State, 409 So. 2d 1031 (Fla. 1982). The supreme court attempted to resolve the dilemma by adopting, in Faison v. State, 426 So. 2d 963 (Fla. 1983), the three-pronged test enunciated by the Kansas Supreme Court. The test stated that movement or confinement, to result in kidnapping:
(a) Must not be slight, inconsequential and merely incidental to the other crime;
*1263 (b) Must not be of the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.
Faison v. State, supra, at 965, quoting State v. Buggs, 219 Kan. 203 at 216, 547 P.2d 720 at 731 (1976).
We find that the facts of this case do not support a conviction of kidnapping according to the test adopted in Faison v. State, supra. Further, the facts are very similar to those presented in Friend v. State, 385 So. 2d 696 (Fla. 1st DCA 1980), wherein this court reversed a conviction for kidnapping. In that case, the appellant and an accomplice entered an office building with firearms. While committing a robbery, three employees were motioned into a bathroom and commanded to stay. Within five minutes, the employees opened the door and discovered the robbers were gone. After citing State v. Buggs, supra, the kidnapping conviction and sentence were reversed. Although the court noted that appellant's actions might fall within the literal language of Florida's kidnapping statute, it held that:
[t]he confinement was of minimal duration, without significant asportation or movement, and did not significantly lessen the risk of detection or make the robbery substantially easier to complete than would any alternative forcible restraint essential to the commission of the robbery.
385 So.2d at 697.
In the case at bar, the confinement was of less duration than that in the Friend case, lasting at most one and one half minutes. The confinement did not substantially lessen the risk of detection. Although Manning testified that the purpose of the confinement was to prevent Mr. Baker from obtaining the car's license number, Baker did in fact obtain the number and appellant was thereby apprehended. Nor did the confinement make the crime substantially easier to complete. In fact, the robbery had already been completed at the time Baker was placed in the bathroom. We therefore adopt the reasoning used by this court in Friend v. State, supra, and find the confinement to have been "without independent significance" and "not within the intended purview of § 787.01(1)(a)2, Florida Statutes." 385 So.2d at 697. (See also Simpkins v. State, 395 So. 2d 625 (Fla. 1st DCA 1981) wherein this court adopted the reasoning used by the court in Friend v. State to reverse a conviction of kidnapping in the commission of a sexual battery.)
The conviction and sentence for kidnapping are REVERSED.
TILLMAN PEARSON (Ret.), Associate Judge, concurs.
BOOTH, J., dissents.
BOOTH, Judge, dissenting:
I respectfully dissent and would affirm the judgment of conviction below. The testimony shows that the victim Baker was barricaded into a bathroom by appellant and his accomplice after the robbery was completed. The testimony is that appellant stacked 50-pound bags in front of the bathroom door so that Baker was required to struggle to get the door open and free himself. In the Friend case, supra, cited by the majority, the facts show that the victims were put into a bathroom and commanded to stay there. The reported decision indicates that the door was not locked or otherwise barred from the outside, as it was in this case. It is totally immaterial that, in the instant case, Baker was able to push the door open and escape in a relatively short period of time. Likewise immaterial is that the felons' purpose of preventing the victim from getting their tag number was frustrated. The fact remains that the victim was significantly deprived of his liberty and confined in a way which meets the test of Faison v. State, 426 So. 2d 963 (Fla. 1983). More recent than the Friend case, supra, is Dowdell v. State, 415 So. 2d 144 (Fla. 1st DCA 1982), petition for review denied, 429 So. 2d 5 (Fla. 1983), wherein this *1264 court affirmed a kidnapping conviction, holding:
We reject Dowdell's contention that the confinement and movement of the victim in this case was not significantly independent of the crime of robbery. The movement of the manager from the well-lighted parking lot through the rear door into the building and the requirement that he stay out-of-sight below counter level in moving to and from the safe supports a jury finding that the movement and confinement served to lessen the risk of detection, Ayendes v. State, 385 So. 2d 698 (Fla. 1st DCA 1980), and to facilitate the commission of the crime of robbery. Section 787.01(12)(a), Florida Statutes (1979). [emphasis added] | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626003/ | 464 So. 2d 103 (1985)
Claude ESTES
v.
James David MONK and Rose Marie Monk.
Civ. 4531.
Court of Civil Appeals of Alabama.
January 9, 1985.
*104 John Ben Jones, Lanett, for appellant.
John W. Johnson, Jr., Lanett, for appellees.
ROBERT M. PARKER, Retired Circuit Judge.
This is an action for materials and labor provided under a contract for partial remodeling of a house.
After some negotiations appellant entered into an agreement with the Monks to partially remodel the Monks' house. Appellant submitted a written proposal to furnish the materials and labor for $15,000. Appellant contends his proposal was only an estimate. The Monks contend it was a firm offer. Estes and Mr. Monk met with Frank Jones, vice president of Phenix Federal Savings and Loan, to go over the plans in an attempt to secure financing for the project. Jones testified that he understood the proposal to be a firm offer. Monk was unable to get immediate and full financing of the project. Estes began work but was unable to finish due to financial trouble of both parties. Appellant contends he expended $9,983.29 on materials and labor. Appellees contend they expended more than $12,000 in advances and for payment of materials and labor Estes was unable to provide. The project was not completed by Estes. Estimates on completing the work ranged from one-third of the work being already completed to needing only about $1,500 to finish the job. After an ore tenus hearing the trial court awarded the appellant a judgment in the sum of $3,000.
Appellant contends on appeal the trial court erred in that the amount of the judgment is against the great weight of the evidence. When a trial judge sits as a finder of fact and hears and observes witnesses as they speak, his judgment is presumed correct and will not be reversed if it is supported by legal evidence and is not clearly wrong and unjust. Barbour v. State Department of Pensions & Security, 367 So. 2d 470 (Ala.Civ.App.), cert. denied, 367 So. 2d 472 (Ala.1978). There was a conflict in the evidence as to whether appellant made a firm offer of $15,000 or whether he said he would try to stay within the $15,000 amount or "give it his best shot."
Findings of fact are presumed correct where there is disputed evidence and the trial court hears testimony ore tenus. Campbell v. Campbell, 371 So. 2d 55 (Ala. Civ.App.1979).
*105 Appellant further contends that the contract is void for indefiniteness and that he should have been awarded restitution for the benefit conferred on the Monks. This is an implied contract or, more properly, a quasi-contract or constructive contract. The remedy of quasi-contract is founded upon the familiar principle of avoiding unjust enrichment. Opelika Production Credit Association v. Lamb, 361 So. 2d 95 (Ala.1978). However, the law will not imply a promise against the express declarations of the party to be charged made at the time of the supposed undertaking. Summers v. Ralston Purina Co., 260 Ala. 166, 69 So. 2d 858 (1954). The court must construe and enforce contracts as they are written. The court should not, under the guise of construction, make new contracts for the parties, nor should the court add to the terms of a contract words, terms, or conditions not contained in it. John Hancock Mutual Life Insurance Co. v. Schroder, 235 Ala. 655, 180 So. 327 (1938).
In the instant case the trial court found the written contract to be binding. We find there is sufficient evidence to support the trial court's judgment, and this case is affirmed.
The foregoing opinion was prepared by Retired Circuit Judge ROBERT M. PARKER while serving on active duty status as a judge of this court under the provisions of section 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.
AFFIRMED.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626041/ | 464 So. 2d 894 (1985)
Mercedes SHELLINS, Individually and on Behalf of her Minor Child, Michelle Shellins
v.
Edwin COLAR, Walter Washington and New Orleans Public Service, Inc.
Kim SMITH
v.
Edwin COLAR.
Nos. CA-2312, CA-2313.
Court of Appeal of Louisiana, Fourth Circuit.
February 12, 1985.
*895 Edward P. Comeaux, Anna M. Washburn, New Orleans, for plaintiff-appellant, Mercedes Shellins.
James C. Witcher, II, New Orleans, for plaintiff-appellant, Kim Smith.
Lawrence H. Martin, New Orleans Legal Assistance Corp., New Orleans, for defendant-appellant, Edwin Colar.
Charlton B. Ogden, III, Ogden, Ogden & McCune, New Orleans, for defendant-appellee, N.O. Public Service, Inc.
Before REDMANN, C.J., and BARRY and KLEES, JJ.
BARRY, Judge.
Plaintiffs were awarded damages from a negligent uninsured motorist whose vehicle collided with a left turning New Orleans Public Service bus. Plaintiffs' appeal claims their NOPSI driver was also negligent and the public carrier did not exonerate itself from its high duty of care.
On March 15, 1982 around 10:30 p.m. Michelle Shellins and Kim Smith were farepaying passengers aboard a NOPSI bus driven by Walter Washington. The bus was stopped for a red light on N. Galvez (two-way street) at the intersection of Desire Street. Washington testified that corner has no bus stop for his route and he did not pick up or discharge passengers. Washington said he put on the left turn signal several car lengths before the corner. When the light turned green he looked into the side view mirror and no vehicle was attempting to pass on the left, so he started a left turn onto Desire St. The left front of the bus collided with the right front fender of an automobile driven by Edwin Colar. Washington was positive the bus lights were on, but did not recall if the car's lights were on. He said it appeared Colar was also attempting a left turn.
Colar testified there were two cars behind the bus and in front of him. He claimed the bus did not move when the light changed to green and assumed the bus was picking up or dropping off passengers, so he proceeded to pass the three vehicles (at about 30 miles an hour) to continue on N. Galvez. As he reached the rear of the bus it started to pull away from the curb without its left turn signal on. Colar said he blew his horn and hit the brakes before the collision. He received a citation for improper lane usage.
Plaintiff Smith testified as to the positions of the car and bus and said she did not hear a horn blow before the collision. Neither plaintiff provided any information to resolve the conflicting testimony.
NOPSI's investigator testified (over an objection to hearsay) that Colar said there was a car and bus in front of him (not two cars) and he intended to continue down Galvez. Colar's passenger, Rod Rouzan, testified Colar's car was behind a bus following a car directly behind NOPSI's bus.
A public conveyance owes a special duty to its fare-paying passengers, Muse v. New Orleans Public Service, Inc., 449 So. 2d 164 (La.App. 4th Cir.1984), writ denied 450 So. 2d 967 (La.1984), and are charged with the highest degree of care. Taylor v. Meyer, 432 So. 2d 933 (La.App. 4th Cir.1983). A fare-paying passenger's failure to reach his destination safely establishes a prima facie case against the carrier; the burden of proof then shifts to the carrier to exculpate itself. Galland v. New Orleans Public Service, Inc., 377 So. 2d 84 (La.1979). The carrier will be held liable for the slightest negligence with reference to its highest degree of care. Anderson v. New Orleans Public Service, Inc., 433 So. 2d 872 (La.App. 4th Cir.1983), writ denied 439 So. 2d 1077 (La.1983).
*896 In written reasons the trial court specified that the bus driver's testimony was more credible and concluded the accident was caused solely by Colar. Although the reasons do not articulate that the burden shifted to NOPSI after plaintiffs proved their injuries on the bus, we interpret the court's statement that Washington was not negligent to mean NOPSI had exculpated itself.
The court's conclusion that Washington was not negligent obviously extends to his high duty as a left-turning motorist. Should an accident occur the motorist carries the burden of exculpating himself of fault. Makas v. New Orleans Public Service, Inc., 410 So. 2d 351 (La.App. 4th Cir. 1982). La.R.S. 32:104 A additionally mandates that a vehicle not turn left or right until such movement can be made with reasonable safety. Horde v. Foucha, 396 So. 2d 441 (La.App. 4th Cir.1981), writ denied 401 So. 2d 976 (La.1981).
That stringent duty should not be applied when the non-turning driver is overtaking the turning motorist since both parties are then engaged in dangerous maneuvers. Judy v. Capps, 185 So. 2d 84 (La. App. 4th Cir.1966). The overtaking motorist is also statutorily prohibited from passing when approaching within 100 feet of an intersection. La.R.S. 32:76 A(2). The motorist legally turning after checking the rear view mirror may be found free from negligence if the overtaking car (traveling at a much higher rate of speed) cannot be seen before the collision. Procell v. Strange, 203 So. 2d 739 (La.App. 3rd Cir. 1967). The left-turning motorist is not required to maintain a continuous observation to his rear. Hudgens v. Mayeaux, 143 So. 2d 606 (La.App. 3rd Cir.1962). Washington testified he looked before he attempted to turn onto Desire Street and we are satisfied he did not violate any duty owed to his passengers.
The trial court's findings are accorded great weight and will not be disturbed absent manifest error. Arceneaux v. Domingue, 365 So. 2d 1330 (La.1978).
The judgment is affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626015/ | 464 So. 2d 278 (1985)
Brenda Marie Brignac TULLIER
v.
Benjamin J. TULLIER, Jr.
No. 84-C-1204.
Supreme Court of Louisiana.
February 25, 1985.
*279 William D. Grimley, Baton Rouge, for plaintiff-applicant.
Steve M. Marks, Linda Lynch, Baton Rouge, for defendant-respondent.
BLANCHE, Justice.
This suit involves the partition of a community property regime. Plaintiff, Brenda Marie Tullier and defendant, Benjamin J. Tullier, Jr. were divorced on February 7, 1980. After their divorce, plaintiff filed suit to partition the community which existed during their marriage and claimed that three tracts of immovable property acquired by her husband during their marriage were community property. The trial court found that these tracts of land were community property. The Court of Appeal *280 reversed the trial court holding that the land was the separate property of Benjamin Tullier, Jr. 450 So. 2d 1016. Because this lawsuit involves important issues of community property law which this Court has not addressed, we granted writs.
The property in question was acquired by defendant from his mother, Pearl Tullier. Pearl Tullier had purchased the three lots during a period from February 21, 1951 to December 9, 1959 for a total price of $16,800.00 and these lots were her separate property. When Pearl Tullier's husband died in 1966, these tracts were included in the Succession of Benjamin J. Tullier, Sr. as a result of opposition to the succession. The heirs of Benjamin Tullier, Sr. eventually compromised their differences concerning the succession and in order to facilitate the compromise agreement, defendant agreed to pay the succession $15,000.00 in cash. These funds came from the redemption of Series E Savings Bonds held in co-ownership with his mother and which were acknowledged by her to be solely the property of her son. Although defendant signed the compromise agreement, he did not receive any consideration from the agreement in exchange for his bonds and by the terms of the compromise agreement received nothing from the succession of his father. After the succession was closed Pearl Tullier transferred the property in question by executing three "cash sales" to defendant for a total price of $14,899.00, which was approximately the value of the savings bonds. Although the deeds were entitled "cash sales", no money actually was transferred. Likewise, these "cash sales" lacked a double declaration that the property was acquired with funds belonging to defendant separately and that it was being acquired for his individual estate.
At issue in this lawsuit is the retroactive application of Louisiana Civil Code Article 2340 and the continued validity of the double declaration rule. This precise issue was recently considered in Wood v. Wood, 424 So. 2d 1143 (La.App. 1st Cir.1982) and for the most part, we adopt the reasoning set forth in that opinion to find a retroactive application of the codal article.[1]
The jurisprudence interpreting now repealed Louisiana Civil Code Articles 2334 and 2402[2] had established that as to immovable *281 property conveyed to the husband for a cash consideration during the marriage, there is a presumption which may not be rebutted that the property is community property unless there is contained in the act of acquisition a double declaration that the property was acquired with funds belonging to the husband separately and that it was being acquired for his individual estate. Wood v. Wood, supra; Phillips v. Nereaux, 357 So. 2d 813 (La.App. 1st Cir.1978); Thomas v. Thomas, 27 So. 2d 758 (La.App.Orl.1946). While there has been much discussion as to the original purpose of the double declaration rule and as to whether it ever accomplished its desired result, the rule was nonetheless applied by the courts of this state until the enactment of Civil Code Article 2340 which legislatively eliminated the double declaration rule. Therefore, although we agree it is questionable whether the double declaration rule ever accomplished its desired goal, its relative success or failure is immaterial to our determination that Article 2340 may be applied retroactively.
Louisiana Civil Code Article 2340 provides:
Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property.
Comment (b) states that this provision was intended to suppress the requirement of a double declaration which was established by Louisiana jurisprudence. Therefore, as of January 1, 1980, which was the effective date of Article 2340, the double declaration is no longer required. However, as in the present case, numerous transactions among married persons involving immovable community property took place prior to January 1, 1980 thereby bringing into focus the question of whether Article 2340 should be applied retroactively. If Article 2340 is not applied retroactively, the property in question will be conclusively presumed to be community property. However, if Article 2340 is given retroactive application, the husband will be allowed to introduce evidence as to the separate nature of the property.
There were two separate revisions to the Code articles dealing with Matrimonial Regimes. Title VI of Book III of the Revised Civil Code entitled "Matrimonial Regimes" was initially repealed by Acts 1978, No. 627, § 6. This Act added La.R.S. 9:2831 through La.R.S. 9:2856 to the Revised Statutes. La.R.S. 9:2838 contained a paragraph with language almost identical to that recited above in Article 2340, eliminating the double declaration requirement. Wood v. Wood, supra.
Section Nine of Act 627 of 1978 provided that statutes therein enacted would take effect January 1, 1980, and would apply to the property and obligations of all spouses, regardless of when the spouses were married or the property acquired. However, Section Nine also provided that the new provisions concerning the legal regime could not be construed so as to change the characterization as separate or community of assets acquired prior to the effective date by a spouse who relied on the law in force at the time of the transaction. Thus, under the first revision the provisions of the new legal regime could not apply retroactively *282 to change the classification of property as separate or community. Wood v. Wood, supra.
The following year, Acts 1979, No. 709 repealed Acts 1978, No. 627 in its entirety and enacted a new Title VI of Book III of the Revised Civil Code, again entitled "Matrimonial Regimes" including Article 2340 as stated above. Section Thirteen of Act 709 also provided January 1, 1980 as the effective date of the new matrimonial regimes code articles. However, unlike Section Nine of Acts 1978, No. 627, no provision was made for the retroactivity of the new laws. Thus, the second revision did not preclude a retroactive application of the elimination of the double declaration requirement, as was formerly the case with the 1978 legislation. Wood v. Wood, supra.
Conclusive presumptions have been considered to be rules of substantive law rather than rules of evidence. 31 A C.J.S., Verbo "Evidence," § 115; C. Samuel, The Retroactivity Provisions of Louisiana's Equal Management Law: Interpretation and Constitutionality. 39 La.L. Rev. 347 at 400 (1979). Since the double declaration rule has been interpreted to be a conclusive presumption, it is argued by plaintiff and others[3] that the double declaration rule is a rule of substantive law. Louisiana has several other conclusive presumptions including the presumption of survival when more than one person perishes in the same event,[4] not allowing evidence of the absence or failure of consideration for a note against a holder in due course[5] and the conclusiveness of res judicata.[6] S. Dwyer, Presumptions and Burden of Proof, 21 Loy.L.Rev. 377 (1975). However, as distinguished from the double declaration rule which was purely of a judicial origin, these conclusive presumptions were enactments of the Louisiana legislature. In Louisiana, the law is the solemn expression of legislative will. La.Civ.Code art. 1. The judicial branch of government merely interprets such expressions of legislative will. The decisions of our state courts do not create or eliminate substantive rights as this is the proper function of the legislature. Wood v. Wood, supra. Lee v. Peerless Insurance Company, 248 La. 982, 183 So. 2d 328 (1966); Carpenter v. Metropolitan Life Insurance Company, 182 La. 813, 162 So. 630 (1935); State v. Murtes, 232 La. 486, 94 So. 2d 446 (1957); State v. Vallery, 212 La. 1095, 34 So. 2d 329 (1948); Pfister v. St. Bernard Cypress Company, 155 La. 575, 99 So. 454 (1924). Therefore, the jurisprudentially created double declaration rule did not and could not have created any substantive right of ownership in property.
As a general rule in Louisiana, a law can proscribe only for the future. La. Civ.Code art. 8. However, laws which are not substantive but which are merely procedural or remedial will be given retroactive effect in the absence of language to the contrary. Ardoin v. Hartford Accident & Indemnity Company, 360 So. 2d 1331 (La.1978); General Motors Acceptance Corporation v. Anzelmo, 222 La. 1019, 64 So. 2d 417 (1953). Likewise, a law cannot be applied retroactively which will impair obligations of contracts or divest or impair vested rights. Long v. Northeast Soil Conservation District of Louisiana, 226 La. 824, 77 So. 2d 408 (1955); Brown v. Indemnity Insurance Company of North American, 108 So. 2d 812 (La.App. 2nd Cir. 1959).
Civil Code Article 2340 establishes a presumption in favor of the community which can be rebutted by either spouse. Since this presumption is rebuttable, the article is procedural in nature and can be applied retroactively. Ardoin v. Hartford Accident & Indemnity Company, supra; *283 Wood v. Wood, supra. Since we have already concluded that the double declaration rule did not establish substantive rights, the retroactive application of Article 2340 will not divest the wife or any vested rights. Therefore, there is no bar to the retroactive application of Article 2340.
While we have concluded that there is no bar to the retroactive application of Article 2340, it has been suggested that there is no need to apply Article 2340 retroactively and that to do so would be unfair to the wife. Note, "Retroactivity of the Repeal of the Double Declaration Rule: Wood v. Wood", 44 La.L.Rev. 823 (1984). The intent of Article 2340 was to terminate the double declaration rule and to allow either spouse to prove the separate nature of property acquired during the community. Since the legislature has concluded that the better policy would permit a spouse to prove in court the true nature of property rather than to rely on the conclusive presumption fashioned by the Court, the logical application of the rule would subject all property to its rule regardless of when acquired. Neither is there any unfairness to the wife in giving retroactive affect to Article 2340. Under the double declaration rule, property that may have been truly the separate property of the husband was arbitrarily presumed to be property of the community absent the double declaration. Under Article 2340, the husband would have the opportunity to prove the separate nature of this property. While a retroactive application of Article 2340 will prevent the wife from placing property in the community that but for the double declaration rule would be classified as separate, the wife will not be deprived of any property which is in truth and fact community property. There is therefore ample reason to apply Article 2340 retroactively.
Having concluded that Article 2340 should be applied retroactively, we must determine whether defendant has proved the separate nature of the property in question. Under Article 2340, the property is presumed to be community. The party asserting the separate nature of the property acquired during the marriage has the burden of overcoming a strong presumption in favor of the community. Curtis v. Curtis, 403 So. 2d 56 (La.1981). Defendant was the owner of bonds which had been set aside for him by his father and which were his separate property. These bonds were transferred to defendant's mother in order to compromise adverse succession claims. In return, Pearl Tullier transferred by "cash sale" the three tracts of land in question to defendant. At the time of these "cash sales" no money was transferred. It is arguable whether this was a true cash sale or whether this was a donation. If this was in fact a cash sale, the funds used by defendant to purchase the land were his separate property. Likewise, if this was a donation by Pearl Tullier to her son, then the land would also be the separate property of defendant. La. Civil Code art. 2341. McElwee v. McElwee, 255 So. 2d 883 (La.App. 2d Cir.1971). In either case, we conclude that defendant has proved the property to be his separate property under Louisiana Civil Code Article 2341.[7]
DECREE
For the above reasons, the judgment of the Court of Appeal is affirmed.
AFFIRMED.
NOTES
[1] The Third Circuit Court of Appeal has also adopted the reasoning found in Wood. See Stone Oil Corporation v. Acadiana Consulting & Investment Company, Inc., 448 So. 2d 901 (La. App. 3rd Cir.1984).
[2] Former Article 2334 reads:
The property of married persons is divided into separate and common property.
Separate property is that which either party brings into the marriage, or acquires during the marriage with separate funds, or by inheritance, or by donation made to him or her particularly. The earnings of the wife when living separate and apart from her husband although not separated by judgment of court, her earnings when carrying on a business, trade, occupation or industry separate from her husband, actions for damages resulting from offenses and quasi offenses and the property purchased with all funds thus derived, are her separate property.
Actions for damages resulting from offenses and quasi offenses suffered by the husband, living separate and apart from his wife, by reason of fault on her part, sufficient for separation or divorce shall be his separate property.
Common property is that which is acquired by the husband and wife during marriage, in any manner different from that above declared. But when the title to community property stands in the name of the wife, it cannot be leased, mortgaged or sold by the husband without the wife's written authority or consent.
Where the title to community immovable property stands in the names of both the husband and wife, it may not be leased, mortgaged or sold by the husband without the wife's written authority or consent.
Where the title to community immovable property declared to be the family home stands in the name of the husband alone it may not be leased, mortgaged or sold without the wife's written authority or consent.
The limitation on the husband described in the two immediately preceding paragraphs shall not apply where the wife has made a declaration by authentic act that her authority or consent are not required for such lease, sale or mortgage and has filed such declaration in the mortgage and conveyance records of the parish in which the property is situated.
The declaration may be general as to all such property or it may specify property to which it shall or shall not apply. If the declaration so provides, it may apply generally to property which may be acquired in the future, but a contrary declaration of withdrawal of her authority or consent by the wife may be made and recorded.
Former Article 2402 reads:
This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estate which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase. But damages resulting from personal injuries to the wife shall not form part of this community, but shall always be and remain the separate property of the wife and recoverable by herself alone; `provided where the injuries sustained by the wife result in her death, the right to recover damages shall be as now provided for by existing laws.'
[3] See C. Samuel, The Retroactivity Provisions of Louisiana's Equal Management Law: Interpretation and Constitutionality, 39 La.L.Rev. 347 (1979); Note, Retroactivity of the Repeal of the Double Declaration Rule: Wood v. Wood, 44 La.L.Rev. 823 (1984).
[4] La.Civil Code arts. 936-39.
[5] La.R.S. 10:3-306; 10:3-408.
[6] La.Civil Code art. 2286; La.R.S. 15:433.
[7] Civil Code Article 2341 provides:
The separate property of a spouse is his exclusively. It comprises: property acquired by a spouse prior to the establishment of a community property regime; property acquired by a spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used; property acquired by a spouse by inheritance or donation to him individually; damages awarded to a spouse in an action for breach of contract against the other spouse or for the loss sustained as a result of fraud or bad faith in the management of community property by the other spouse; damages or other indemnity awarded to a spouse in connection with the management of his separate property; and things acquired by a spouse as a result of a voluntary partition of the community during the existence of a community property regime. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1626007/ | 464 So. 2d 1173 (1985)
Mario LARA, Appellant,
v.
STATE of Florida, Appellee.
No. 62691.
Supreme Court of Florida.
January 24, 1985.
Rehearing Denied April 4, 1985.
*1174 Adam H. Lawrence, Sp. Asst. Public Defender, Miami, for appellant.
Jim Smith, Atty. Gen. and Marti Rothenberg and Richard E. Doran, Asst. Attys. Gen., Miami, for appellee.
OVERTON, Justice.
The appellant, Mario Lara, was convicted of one count of first-degree murder, one count of second-degree murder, and one count of involuntary sexual battery. In accordance with the jury's sentence recommendation, the trial judge imposed the death sentence for the first-degree murder. In addition, she imposed two consecutive ninety-nine year sentences for the second-degree murder and sexual battery convictions. We have jurisdiction, article V, section *1175 3(b)(1), Florida Constitution, and we affirm the convictions and sentences.
The relevant facts are as follows. On July 16, 1981, a Miami police officer was dispatched to meet Francisco Rizo at an apartment where Rizo had discovered the body of his girlfriend, Grisel Fumero. Rizo let the officer into the apartment and directed him to the kitchen where Fumero was lying face-down on the floor in a pool of blood. She had been shot four times. During the investigation of the crime scene, an upstairs tenant notified the police that there was another body in an upstairs bedroom. This body was identified as that of appellant's girlfriend, Olga Elviro. She had been bound and gagged and had been stabbed three times. Evidence introduced at trial indicated that Elviro had also been raped. A handgun found on the premises was determined to have been the weapon that fired at least one of the bullets into Fumero. The police also recovered a serrated knife which was tentatively identified as the weapon used to stab Elviro.
Evidence presented at trial established that, at the time of the homicides, appellant was awaiting trial on charges of robbery and voluntary and involuntary sexual battery. The sexual battery victim was Fumero's 13-year-old sister and Fumero was expected to testify against appellant at trial, which was to have begun the week of the homicides. There also was evidence that Elviro had learned of the charges against the appellant and had threatened to leave him. Further, on the day prior to the homicides, appellant had displayed two handguns and had threatened to kill Elviro and her sister-in-law, who had apparently told Elviro of the charges against appellant.
The evidence further established that, on the day of the homicides, appellant went to the upstairs apartment, woke Tomas Barcelo, and stated that he and Elviro needed to use the apartment. Barcelo left the apartment, went out into the yard, and, about half an hour later, saw appellant leave the apartment alone. Appellant next went to the downstairs apartment where he was admitted by Fumero. He went through the kitchen into his brother's bedroom in the same apartment. At this time Barcelo was in the kitchen at the request of Fumero. Appellant returned to the kitchen with his hands behind his back and told Fumero, "It's your fault that I have lost everything." He then pulled a gun from behind his back and shot Fumero in the stomach. She said, "Mario, Mario, why are you doing that to me?" Appellant replied, "Why am I doing that? Son of a bitch," and continued firing until the gun was empty. Appellant continued to pull the trigger after the gun was empty. Appellant's brother, Arsenio Lara, was in the room at this time and both he and Barcelo told appellant he was a murderer. Appellant retorted, "Oh, I'm a murderer," and, while laughing, started to reload the gun. Appellant's brother and Barcelo, believing they would also be killed, ran out of the apartment Barcelo fled to New York and was not located until just before the trial. The brother, who was found with a blood-spattered watch in his possession, was originally charged with the murders, but was given immunity in exchange for testifying against appellant and the charges against him were dismissed. He subsequently refused to testify and was jailed for contempt. Rizo, who had notified the police of the murder and admitted them to the premises, became a fugitive and was not available at trial.
The appellant was arrested in New Jersey on July 21, 1981, on outstanding warrants for a robbery and sexual battery which occurred before these homicides. He waived extradition to Florida. An indictment was filed on November 17, 1981, charging appellant with two counts of premeditated murder and one count of involuntary sexual battery. The jury convicted appellant of the first-degree murder of Fumero and the second-degree murder and sexual battery of Elviro.
In the penalty phase, Lara presented the testimony of his aunt, Carmen Lara, who stated that appellant had been regularly beaten as a child by his father and, as a result of one of those beatings, had been hospitalized for a month. No testimonial *1176 evidence was presented by the state. The jury, by an eight-to-four vote, recommended the imposition of the death penalty for the murder of Fumero. Prior to the imposition of sentence, the trial court heard testimony from two additional defense witnesses, a psychiatrist and a long-time acquaintance of appellant, who testified concerning appellant's abusive childhood and its effect on his behavior.
The trial court concurred in the jury's advisory sentence and imposed the death penalty, finding three aggravating factors: (1) the appellant was previously convicted of second-degree murder and sexual battery; (2) the murder was committed to disrupt or hinder the lawful exercise of a governmental function or the enforcement of law; and (3) the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. The court found that no statutory or non-statutory mitigating factors existed.
Trial Phase.
Appellant challenges his conviction on twelve grounds. In his first contention, appellant claims that the trial court erred in denying his motion for discharge based on the alleged violation of the 180-day speedy trial provision of Florida Rule of Criminal Procedure 3.191. He argues that the speedy trial period for the homicides commenced either when he was arrested in New Jersey by the New Jersey police on July 21, 1981, or when he was arrested by Miami police in New Jersey on July 22, 1981, rather than when he was indicted for the murders on November 17, 1981. Evidence presented to the trial court during a two-day evidentiary hearing on this issue reflects that the Miami police sent a teletype to the New Jersey authorities that indicated there were outstanding Florida warrants for appellant's arrest for a robbery and an involuntary sexual battery that occurred prior to the homicides. The teletype also stated that appellant was wanted for questioning with reference to a homicide. New Jersey police testified that they arrested appellant as a fugitive on the outstanding warrants which were unrelated to the homicide incident. Although the police informed appellant at the time of his arrest that they were investigating the double homicide, they did not inform him that he was under arrest for the homicides. The trial judge found that the appellant was not arrested on the homicide charges until November 17, 1981; that appellant's arrest in New Jersey was pursuant to the two outstanding Florida fugitive arrest warrants; that the Miami police never told the New Jersey police any of the facts about the homicides; that no Florida warrants for the arrest of appellant for the homicides were outstanding at the time of his arrest in New Jersey; and that appellant was never told in New Jersey that he was being arrested for the homicides.
Appellant contends that, at the time of his arrest in New Jersey, the authorities possessed sufficient evidence to establish probable cause to arrest him for the homicides. He argues that our decision in Thomas v. State, 374 So. 2d 508 (Fla. 1979), cert. denied, 445 U.S. 972, 100 S. Ct. 1666, 64 L. Ed. 2d 249 (1980), controls by reason of the following language:
[T]he spirit of the Speedy Trial Rule would not condone the withholding of some charges and an arrest on others so as to effectively extend the time periods of the rule where there is ample evidence to support probable cause as to all charges... .
374 So.2d at 513.
We disagree and find that our decision in Thomas supports the trial court's denial of the motion for discharge. In Thomas, the appellant was initially charged with receiving and concealing stolen property. The property in question had been stolen during a burglary/robbery in which the perpetrator had killed one victim and sexually assaulted another. During the search of appellant's house and car, and during subsequent interrogation, the police obtained evidence implicating appellant in the homicide and assault. He was not formally charged with these crimes, however, until almost one year later. We upheld the trial court's *1177 denial of the appellant's motion for discharge based on the alleged violation of the speedy trial rule, finding that the police did not have probable cause to arrest appellant for the homicide and assault at the time he was taken into custody for the stolen property offenses. 374 So.2d at 513-14. We recognized that the state could not purposefully delay filing charges so as to extend the time periods of the speedy trial rule, and concluded that the appellant had failed to establish any prosecutorial abuse with regard to the delayed filings in that case. Id. at 513.
Similarly, in the instant case, the appellant has failed to establish prosecutorial abuse. We note that, of the three critical witnesses in this cause, one was initially charged with the murder, one went into hiding and was not located until just before trial, and the other left and had not been located at the time of the trial. The police had not sufficiently completed their investigation at the time of appellant's arrest in New Jersey so as to have adequate probable cause to charge him with the homicides and, therefore, there was no prosecutorial abuse in delaying the indictment and arrest for the homicides. The limited questioning of appellant in New Jersey did not, under these circumstances, constitute an arrest or a taking into custody with regard to the homicides for the purpose of commencing the speedy trial period of Florida Rule of Criminal Procedure 3.191. We find no violation of the rule and we approve the findings and ruling of the trial court.
In his second point, appellant asserts that the trial court erred in denying his motion to suppress physical evidence found during the allegedly illegal warrantless search of the two apartments where the victims were found. The trial court denied the motion on the grounds that (1) an occupant of the apartment where Fumero was found consented to the search and (2) the search of both apartments was justified by the exigent circumstances exception to the warrant requirement. The trial court found that there was ample evidence to conclude that Rizo, who notified police of the murder of Fumero and admitted them into the apartment, had the authority to consent to the police access to the apartment where Fumero was found.
Appellant asserts that Rizo did not have the authority to admit the police into the apartment and that, assuming Rizo did have the required authority, the consent was improperly proved by inadmissible hearsay evidence. We reject both arguments. There was evidence presented during the suppression hearing that Rizo lived in and had joint control of the searched apartment and that he was authorized to give valid consent to the search of the apartment. See United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974); Ferguson v. State, 417 So. 2d 631 (Fla. 1982). Further, we find that the hearsay evidence establishing Rizo's consent was properly admitted at the suppression hearing, even though Rizo was unavailable for cross-examination. This Court has previously held that an affidavit for a search warrant may be based on hearsay information. State v. Wolff, 310 So. 2d 729 (Fla. 1975) (citing Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), overruled on other grounds, United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980)). See also Blair v. State, 406 So. 2d 1103 (Fla. 1981). In addition, we note that the United States Supreme Court in Jones found that "an officer may act upon probable cause without a warrant when the only incriminating evidence in his possession is hearsay... ." 362 U.S. at 270, 80 S.Ct. at 735. We find no error in the admission of the hearsay evidence in this cause.
Further, without regard to the consensual nature of the entry, we hold that the search of both apartments was justified under the exigent circumstances exception to the warrant requirement. We find that the exigent circumstance exception applies when police are called to the scene of a homicide and that it allows an immediate warrantless search of the area to determine the number and condition of *1178 the victims or survivors, to see if the killer is still on the premises, and to preserve the crime scene. Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978); Zeigler v. State, 402 So. 2d 365 (Fla. 1981), cert. denied, 455 U.S. 1035, 102 S. Ct. 1739, 72 L. Ed. 2d 153 (1982). In this cause, the police were notified of a single murder and, during their investigation, were informed of another victim. Under the facts of this case, we find that the police were justified in conducting the search of the homicide scene without a warrant and we conclude that the motion to suppress was properly denied.
In his third point, appellant contends that the trial court erred in denying his motion to suppress oral statements taken from him immediately after his arrest in New Jersey, on the ground that they were not preceded by a knowing and intelligent waiver of his sixth amendment rights. The record reflects that appellant, who was a Mariel refugee and spoke only Spanish, was questioned by a Spanish-speaking police officer who read him his Miranda rights from a form printed in Spanish. The officer testified that, after she read the rights in Spanish, appellant indicated that he understood his rights and signed the form. Appellant was subsequently questioned regarding the circumstances of the homicides and his statements were admitted over his objections. Although there is conflicting testimony as to what transpired at the time the statements were given, we find that the record supports the finding of the trial judge that appellant understood his rights and knowingly and voluntarily waived those rights before making the challenged statements. We find no error was committed by the trial judge.
Appellant's fourth issue concerns the trial court's alleged violation of the provisions of Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968). Appellant argues that the trial court improperly excluded for cause two prospective jurors who did not unequivocally state that they would automatically vote against the imposition of the death penalty. In Witherspoon, the United States Supreme Court held that prospective jurors may not be excluded for cause simply because they voice general objections to the death penalty or have conscientious or religious scruples against the infliction of the death penalty. 391 U.S. at 522. The decision, in a footnote, states there should be no exclusion for cause of any prospective juror unless the juror states unequivocally that he would automatically vote against the imposition of the death penalty irrespective of the evidence that might be developed during the trial. See id. at 522, n. 21, 88 S.Ct. at 1777. In Adams v. Texas, 448 U.S. 38, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980), the United States Supreme Court restated the rule as follows:
[A] juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court.
Id. at 45, 100 S.Ct. at 2526 (emphasis supplied).
While this appeal was pending, the United States Supreme Court, in Wainwright v. Witt, ___ U.S. ___, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985), receded from the unequivocal automatic vote portion of Witherspoon and reemphasized the Adams rule holding that a juror may be excused for cause if he expresses views that would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Slip op. at 11 (footnote omitted). This is consistent with our recent decision in Herring v. State, 446 So. 2d 1049 (Fla.), cert. denied, ___ U.S. ___, 105 S. Ct. 396, 83 L. Ed. 2d 330 (1984), in which we applied the Adams rule and held that the excusal of prospective jurors for cause was proper, stating:
It would make a mockery of the jury selection process to ... allow persons *1179 with fixed opinions to sit on juries. To permit a person to sit as a juror after he has honestly advised the court that he does not believe he can set aside his opinion is unfair to the other jurors who are willing to maintain open minds and make their decision based solely upon the testimony, the evidence, and the law presented to them.
446 So.2d at 1055-56.
In the instant case, a review of the entire voir dire examination of the two prospective jurors reflects that their views toward the death penalty would substantially impair, if not totally prevent, the proper performance of their duties as jurors. We conclude that the trial judge properly excluded them for cause.
We reject without discussion appellant's remaining contentions that the trial court erred (a) by failing to grant appellant more peremptory challenges; (b) by limiting appellant's right of cross-examination by denying a continuance until a deposition could be transcribed, by limiting the examination of a witness, and by refusing to permit counsel to cross examine one medical examiner upon another medical examiner's report; (c) by admitting gruesome photographs of the victim into evidence; (d) by improperly charging the jury on witness unavailability; and (e) by denying appellant's motions for judgment of acquittal. Appellant also asserts that certain of the prosecutor's comments constituted prejudicial error, requiring reversal. We find that all these issues are without merit. We have reviewed the record in this case and find that there is substantial competent evidence to support appellant's convictions. We find no reversible error in the guilt phase of appellant's trial.
Sentencing Phase.
In the sentencing phase, appellant raises five claims of error. He first contends that the trial court erred by charging the jury upon only those aggravating and mitigating circumstances which the court thought relevant. The record reflects that the trial court instructed on the three aggravating and two mitigating circumstances which it deemed relevant and further permitted the jury to consider any other aspect of the defendant's character or record and any other circumstance of the offense bearing on mitigation. We find no error. The judge followed the standard jury instructions and specifically addressed all circumstances and gave instructions for those aggravating and mitigating circumstances for which evidence had been presented. We find that appellant was not prejudiced by the instructions given. See Jennings v. State, 453 So. 2d 1109 (Fla. 1984).
Second, appellant argues that the trial court erred by not instructing the jury on the mitigating circumstances of his age and his lack of prior significant criminal history. Appellant made no attempt to present any evidence regarding his lack of a prior significant criminal history. To accept appellant's argument, and mandate the giving of this instruction, would require the state to present evidence to negate this mitigating circumstance and would, in effect, transform this factor into an aggravating circumstance. Further, the record reflects that appellant did have a prior criminal history, at least to the extent of his conviction for the second-degree murder and sexual battery of his girlfriend. We agree with the trial judge that appellant's age of twenty-five did not require an instruction on age as a mitigating circumstance. See Simmons v. State, 419 So. 2d 316 (Fla. 1982); Washington v. State, 362 So. 2d 658 (Fla. 1978), cert. denied, 441 U.S. 937, 99 S. Ct. 2063, 60 L. Ed. 2d 666 (1979). We conclude that there was no error in the instructions given by the trial judge regarding aggravating and mitigating circumstances.
In his third point, appellant argues that the trial judge erred in determining that three aggravating circumstances and no mitigating circumstances applied to this homicide. The court found that appellant had been previously convicted of a felony involving the use or threat of violence in *1180 accordance with section 921.141(5)(b), Florida Statutes (1981). This aggravating circumstance was properly established by evidence of appellant's conviction of the second-degree murder and sexual battery of Elviro. See Elledge v. State, 408 So. 2d 1021 (Fla. 1981), cert. denied, 459 U.S. 981, 103 S. Ct. 316, 74 L. Ed. 2d 293, 67 L. Ed. 2d 825 (1982); King v. State, 390 So. 2d 315 (Fla. 1980), cert. denied, 450 U.S. 989, 101 S. Ct. 1529 (1981); Lucas v. State, 376 So. 2d 1149 (Fla. 1979).
Appellant's fourth point challenges the trial judge's determination that the homicide was committed to disrupt or hinder the lawful exercise of a governmental function or the enforcement of laws under the provisions of section 921.141(5)(g), Florida Statutes (1981). Appellant argues that the court erred in finding that he killed Fumero to eliminate her as a witness in the pending sexual battery case and asserts that this factor was not proven beyond a reasonable doubt. Appellant argues that a more reasonable explanation for the killing was his emotionally overwrought condition immediately following his killing of his girlfriend. It is further asserted that this explanation is plausible considering the fact that the jury returned a second-degree murder verdict for the killing of the girlfriend, rather than a first-degree premeditated murder verdict. These facts, it is argued, establish that this aggravating circumstance was not proven beyond a reasonable doubt. We disagree. The record reflects that Fumero was expected to be called as a witness by the state in the appellant's trial for the sexual battery of Fumero's sister. That trial was scheduled to begin the same week appellant murdered Fumero. There is no question that her willingness to testify brought about her death. We find this aggravating circumstance properly applies under the facts of this case.
In his fifth point, appellant argues that the trial judge improperly determined that the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification under the provisions of section 921.141(5)(i), Florida Statutes (1981). The record reflects that, after committing sexual battery and murdering his girlfriend, appellant came down to the apartment where Fumero was residing with the clear intent to kill her. After killing Fumero, appellant began to reload his gun, while laughing and threatening both his brother and his roommate. We find that the trial court properly found that the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. See Middleton v. State, 426 So. 2d 548 (Fla. 1982), cert. denied, ___ U.S. ___, 103 S. Ct. 3573, 77 L. Ed. 2d 1413 (1983); Jent v. State, 408 So. 2d 1024 (Fla. 1981), cert. denied, 457 U.S. 1111, 102 S. Ct. 2916, 73 L. Ed. 2d 1322 (1982); and Magill v. State, 386 So. 2d 1188 (Fla. 1980), cert. denied, 450 U.S. 927, 101 S. Ct. 1384, 67 L. Ed. 2d 359 (1981).
We agree with the trial judge that the only mitigating circumstance arguably applicable in this cause was the history of abuse suffered by appellant as a child and the difficulty of his childhood. We also agree, however, that the trial court could properly conclude that appellant's actions in committing this murder were not significantly influenced by his childhood experience so as to justify its use as a mitigating circumstance.
In his final point, appellant asserts that the prosecutor made an improper comment in closing argument at the sentencing phase which was prejudicial and requires a new sentencing hearing. The prosecutor made the comment that this murder was more aggravated than a "normal" murder. The court sustained an objection by appellant's counsel, but there was neither a request for a curative instruction nor a motion for mistrial. Under the circumstances, we find no error. See Simpson v. State, 418 So. 2d 984 (Fla. 1982), cert. denied, 459 U.S. 1156, 103 S. Ct. 801, 74 L. Ed. 2d 1004 (1983); Clark v. State, 363 So. 2d 331 (Fla. 1978).
*1181 From our review of the entire record, the imposition of the death penalty in this cause is proportionately correct. For the reasons expressed, we affirm appellant's convictions and sentence of death.
It is so ordered.
BOYD, C.J., and ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3043292/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-2221
___________
Phyllis D. Racy, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
Arkansas Child Support Enforcement *
Unit, Revenue Division, * [UNPUBLISHED]
*
Appellee. *
___________
Submitted: October 12, 2007
Filed: October 22, 2007
___________
Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
___________
PER CURIAM.
Phyllis Racy appeals the district court’s1 dismissal without prejudice of her Title
VII action for failure to comply with a discovery order, and argues that counsel should
have been appointed for her. We affirm.
We conclude the district court did not abuse its discretion in dismissing the
action, given that Racy ignored defendant’s repeated discovery requests for over a
1
The Honorable George Howard, Jr., late a United States District Judge for the
Eastern District of Arkansas.
year, ignored the district court’s order compelling her to respond to such requests, and
never provided any justification for her failure to respond. See Doe v. Cassel, 403
F.3d 986, 990 (8th Cir. 2005) (per curiam) (standard of review of Fed. R. Civ. P. 41(b)
dismissal); Hairston v. Alert Safety Light Prods., Inc., 307 F.3d 717, 718-19 (8th Cir.
2002) (standard of review of Fed. R. Civ. P. 37(b)(2) dismissal); Hutchins v. A.G.
Edwards & Sons, Inc., 116 F.3d 1256, 1259-60 (8th Cir. 1997) (noncompliance
underlying Rule 41(b) dismissal must be deliberate).
We also conclude the district court did not abuse its discretion in refusing to
appoint counsel for Racy, who appeared capable of presenting her case and gave no
indication--below or on appeal--that she could not, without counsel, respond properly
to defendant’s discovery requests. See Phillips v. Jasper County Jail, 437 F.3d 791,
794 (8th Cir. 2006) (standard of review; relevant factors include ability of indigent
person to investigate facts and present claims).
Accordingly, we affirm.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1625902/ | 464 So. 2d 470 (1985)
STATE of Louisiana
v.
Leon THOMAS.
No. 84 KA 1095.
Court of Appeal of Louisiana, First Circuit.
February 26, 1985.
Ossie Brown, Dist. Atty. by Joe Lotwick, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
Kathleen S. Richey, Asst. Public Defender, Baton Rouge, for defendant-appellant.
Before COLE, CARTER and LANIER, JJ.
CARTER, Judge.
On July 28, 1976, defendant, Leon Thomas, was found guilty of distribution of heroin, in violation of LSA-R.S. 40:966(A)(1). Subsequently, he was sentenced to life imprisonment at hard labor. In pronouncing sentence, the trial court stated:
That the law reads, Article 966B, that any person who violates this section, upon conviction shall be sentenced to life imprisonment at hard labor. That is the mandatory requirement. The court has no choice. Therefore, the court transfers you to the custody of the Department of Corrections, thereunder the provisions of the statute and, therefore, sentenced to a term of life imprisonment at hard labor. You have the absolute right to appeal *471 your conviction with 15within 15 days from this date. You understand that?
On September 21, 1983, at a hearing on an application for writ of habeas corpus (which was converted into an application for post-conviction relief), it was stipulated that if the sentencing judge was called to testify, he would testify that he did not have any independent recollection of the sentencing of defendant, nor did he recall if he knew whether or not probation or suspension were sentencing options at the time the defendant was sentenced. It was further stipulated that if he did know of the possibility of probation or suspension options, that he would still have sentenced defendant to life imprisonment "without benefit of probation, parole or suspension of sentence."[1]
On November 18, 1983, consistent with the findings and recommendations of the Commissioner of the 19th Judicial District Court, the sentence to life imprisonment previously imposed was set aside. A sentencing hearing (after being scheduled and rescheduled several times) was ultimately scheduled for June 19, 1984, and a presentence investigation and report was ordered. On June 19, 1984, defendant was resentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence, and this appeal resulted[2].
Thomas appeals alleging one assignment of error, namely, the trial court imposed an excessive sentence.
LSA-R.S. 40:966(B)(1), at the time of the commission of the instant offense, provided "... upon conviction shall be sentenced to life imprisonment at hard labor and, in addition, may be required to pay a fine of not more than Fifteen Thousand Dollars."
At the sentencing hearing on June 19, 1984, the trial court stated:
All right, as stated, this matter is before the Court for re-sentencing, and the Court notes that under the statute which was in effect at the time of the commission of the crime, the defendant was eligible for probation and suspension of sentence under Article 893, and the Court now having received all information deemed appropriate does therefore sentence the defendant as follows. The defendant shall be committed to the custody of the Louisiana Department of Corrections to be imprisoned with hard labor for a period of life without benefit of parole, probation or suspension of sentence on the charge of Distribution of Heroin. In pronouncing this sentence and in accordance with the provisions of Article 894.1 of the Louisiana Code of Criminal Procedure, the Court cites that confinement is appropriate because there is an undue risk that during the period of a suspended sentence or probation, the defendant would commit another crime, and the Court cites the defendant's extensive arrest record dating back to 1972. Although technically classified as a first felony offender, the defendant has two prior felony convictions as reflected in his criminal record which is attached hereto and made a part hereof in its entirety. A lesser sentence would deprecate the seriousness of the defendant's crime, and the Court cites the fact that Distribution of Heroin is a heinous crime as classified by the Louisiana Legislature and, of course, which has imposed the severe penalty. Mr. Thomas, you are now advised that it is your right to appeal from the judgment and sentence....
Defendant contends on this appeal that the trial court abused its discretion in imposing a sentence of life imprisonment at hard labor and that sentence should have been suspended and he should have been placed on supervised probation, which was discretionary with the Court under LSA-C. Cr.P. art. 893[3]. We disagree that defendant *472 should have received a suspended sentence.
Once there is compliance with the sentencing criteria of LSA-R.S. 894.1, a sentence will not be set aside in the absence of manifest abuse of discretion. State v. Wardlow, 448 So. 2d 257 (La.App. 1st Cir.1984).
Upon review of the record, we find that the trial court carefully considered pertinent guidelines listed under LSA-C. Cr.P. art. 894.1 and properly scheduled a full and complete sentencing hearing. At this hearing, the trial court listened to testimony from the defendant's mother who testified that defendant had a dependent child, that he had held several jobs prior to imprisonment, and that a job was available to him should he receive probation. Nevertheless, the trial court, after giving consideration to LSA-C.Cr.P. art. 893 and adhering to the guidelines of LSA-C.Cr.P. art. 894.1, sentenced defendant to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. There was ample information to justify the trial court's imposing an unprobated sentence, and we find no abuse of discretion on the part of the trial court.
While we find no abuse of discretion on the part of the trial court in refusing to sentence the defendant to a period of probation, we note ex proprio motu that a portion of the sentence imposed was illegal. LSA-C.Cr.P. art. 920(2). At the time of the commission of this offense on November 14, 1975, the appropriate penalty for distribution of heroin was life imprisonment at hard labor without any qualification as to the defendant's eligibility for parole, probation or suspension of sentence. LSA-R.S. 40:966. Although at the time of sentencing, LSA-R.S. 40:966(B)(1) provided a sentence of life imprisonment at hard labor without benefit of probation or suspension of sentence, it is not the penalty provision at the time of sentence that is applicable, but the penalty provision in effect at the time of the commission of the offense. State v. Sullivan, 359 So. 2d 186 (La.1978); See Also State v. Lindsey, 351 So. 2d 1178 (La.1977). Therefore, the trial court erred in sentencing the defendant to imprisonment with hard labor for life without benefit of parole, probation or suspension of sentence. State v. Sullivan, supra.
LSA-C.Cr.P. art. 882, as amended by Act No. 587, § 1 of 1984, provides as follows:
Art. 882. Correction of illegal sentence; review of illegal sentence
A. An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.
B. A sentence may be reviewed as to its legality on the application of the defendant or of the state:
(1) In an appealable case by appeal; or
(2) In an unappealable case by writs of certiorari and prohibition.
C. Nothing in this Article shall be construed to deprive any defendant of his right, in a proper case, to the writ of habeas corpus.
Therefore, pursuant to the above, we herein delete from the sentence of the defendant that portion which provides "without benefit of parole, probation or suspension of sentence," and as so amended, the sentence is affirmed.
AMENDED AND AFFIRMED.
NOTES
[1] Although this was the stipulation, the original sentence did not provide "without benefit of probation, parole or suspension of sentence".
[2] See Footnote 1, supra.
[3] Art. 893(A) provides:
When it appears that the best interest of the public and of the defendant will be served, the court, after conviction of a felony for which the punishment is with or without hard labor or a felony which is a violation of the Controlled Dangerous Substances Law of Louisiana, noncapital felony, may suspend for the first conviction only the imposition or execution of any sentence, where suspension is allowed under the law and in either case place the defendant on probation under the supervision of the division of probation and parole supervision. The period of probation shall be specified and shall not be less than one year nor more than five years. The suspended sentence shall be regarded as a sentence for the purpose of granting or denying a new trial or appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625896/ | 464 So. 2d 836 (1985)
Emily Trascher HEINE, Widow of Anton G. Heine, II, Individually and As Natural Tutrix of Her Minor Children, Lori Christine Heine, and Lorna Christine Heine; and Anton G. Heine, Jr.
v.
Amber F. ADAMS, ABC Insurance Company; Kathryn Tyler, XYZ Insurance Company; Eliseo Mikos, ABC Insurance Company; Petroleum Transport Company, Inc., USF & G Insurance Company; and Allstate Insurance Company.
No. 84-CA-318.
Court of Appeal of Louisiana, Fifth Circuit.
February 11, 1985.
Writ Denied April 12, 1985.
Guy W. Olano, Jr., Frank P. Tranchina, Jr., Kenner, for plaintiff-appellant, Emily Thrascher Heine.
C. Scott Carter, Wiedemann & Fransen, New Orleans, for defendant-appellee, Eliseo Mikos, Petroleum Transport Co., Inc. and U.S.F. & G. Co.
Charles W. Schmidt, III, Christovich & Kearney, New Orleans, for defendant-appellee, Interstate Fire & Cas.
*837 Before BOWES, CURRAULT and GAUDIN, JJ.
CURRAULT, Judge.
This appeal originates in the Twenty-Fourth Judicial District Court, Division "A", Parish of Jefferson, wherein the Honorable Roy A. Price rendered judgment dismissing plaintiff's claims pursuant to a jury's finding of no negligence on the part of defendants. We affirm.
As a result of a multi-vehicle accident occurring during the early morning hours of July 23, 1980, Mr. Anton G. Heine, III was killed and his guest passenger, Ms. Amber F. Adams, was severely injured. The Heine pickup truck initially struck a bridge guardrail and was then itself struck by a second automobile driven by Kathryn Tyler. Mr. Heine was thrown into the center lane where he was subsequently run over by a gasoline tanker owned by Petroleum Transport Company and driven by Eliseo Mikos.
A complex lawsuit involving several parties and their insurers ultimately resulted in a lengthy jury trial. At that trial, Mrs. Heine, together with the heirs of Anton G. Heine, III, sought damages against Kathryn Tyler, Eliseo Mikos and Petroleum Transport Company. After eight days and a long parade of witnesses, both factual and expert, the jury returned its verdict finding the three named defendants not negligent. Plaintiffs-appellants have brought this appeal, asserting the following specifications of error:
(1) the trial court erred in failing to instruct the jury as to the appropriate rule of law in cases where the defense of sudden emergency is relied upon; and
(2) the jury erred in finding Petroleum Transport and Eliseo Mikos not negligent.
Appellants argue that because Eliseo Mikos's and Petroleum Transport's liability was negated by the fact that Mr. Mikos was responding to a sudden emergency, the doctrine of sudden emergency should have been carefully explained to the jury. More specifically, appellants complain that because the trial court failed to include a charge explaining that the sudden emergency defense is inapplicable to emergencies precipitated by one's own negligence, the trial court erred grievously. Whittington v. Sowela Technical Institute, 438 So. 2d 236 (La.App. 3d Cir.1983), writ denied 443 So. 2d 591, 592 (La.1983).
The only charge contained in the record pertaining to the sudden emergency defense reads as follows:
If an object suddenly appears in the path of a motor vehicle traveling at a reasonable rate of speed and the accident occurs before the driver can stop or so maneuver his vehicle so as to avoid striking the object, the accident is unavoidable, and there is no liability on the part of the driver.
In West v. U.S. Fidelity & Guaranty Co., 405 So. 2d 877 (La.App. 4th Cir.1981), the court reiterated that a proper charge of all facets of the law involved is essential in order that the rights, liabilities and obligations of all parties concerned may be fairly adjudicated. The court in West, supra, at 879 went on to state:
Where there is question that factual findings are not made pursuant to a clear understanding of the applicable law, the charges will be deemed insufficient or inadequate; and where erroneous charges preclude the jury from reaching a verdict in accordance with the law and facts, the Court of Appeal should render a judgment on the record before it.
The adequacy of a jury instruction, however, must be determined in light of the jury instructions as a whole. Trapani v. State Farm Fire & Cas. Co. 424 So. 2d 449 (La.App. 5th Cir.1982).
Accordingly, after reviewing the jury instructions, in toto, we agree with appellants that this charge is incomplete by its failure to include an essential element of the sudden emergency doctrine; that is, the sudden emergency defense is inapplicable where the emergency was precipitated by claimant's own negligence. Further, we agree with appellants that it would have had a prejudicial effect precluding a jury *838 from reaching a verdict based upon the law and facts. With a complete record before us, including all of the necessary evidence, we now undertake an independent evaluation of the facts as if we had the case before us for a trial de novo to adjudicate the controversy completely. Boyette v. Auger Timber Co., 403 So. 2d 800 (La.App. 2d Cir.1981). We now must make a factual determination of whether Eliseo Mikos and Petroleum Transport Company were negligent.
The accident in question occurred in the eastbound lanes of I-10, seven-tenths of a mile east of Route 72 (a stretch of I-10 situated north of the Michoud Boulevard exit but south of the twin span bridges crossing Lake Pontchartrain). This particular area is normally dark because there is no lighting; and, on the night in question, visibility was further reduced as it was cloudy. The road surface was level and dry.
As Mr. Heine was proceeding east, his pickup truck struck the protective guardrail of a ground level bridge. His truck spun around and came to a stop in the left lane just at the bridge entrance. Ms. Adams, Heine's guest passenger, had been asleep on the front seat. She awoke in a dazed condition after her head had struck the windshield. Seeing Mr. Heine slumped over the steering wheel, she exited the pickup via the passenger side which was facing oncoming traffic.
Mr. Lester Shoemaker, a supply boat mate, was heading east at 55 MPH in the center lane when he spotted what appeared to be steam coming from a disabled pickup truck stopped ahead of him in the left lane. Simultaneously with spotting the disabled Heine truck, Mr. Shoemaker's vehicle was overtaken and passed on the left by a 1976 Oldsmobile driven by Kathryn Tyler. Shoemaker let off the gas as soon as he saw the Heine vehicle and when he saw the Tyler vehicle was not going to stop, he quickly applied his brakes.
The Tyler vehicle then struck Ms. Adams and collided with the Heine pickup which was propelled fifty feet, but remained in the left lane. The Tyler vehicle came to a stop in the right lane seventy-seven feet from the point of impact with the Heine pickup. As a result of the Tyler/Heine collision, Mr. Heine was thrown into the center lane and Ms. Adams was dragged and pinned beneath the Tyler automobile.
Mr. Shoemaker came to a complete stop in the center lane as the Tyler/Heine collision occurred. Once stopped, he tried to "size up the situation." He immediately looked in his rearview mirror and saw three oncoming trucks. Deciding he could not stay there, Mr. Shoemaker proceeded forward going around Mr. Heine, between Mr. Heine and his pickup truck, and then driving to the end of the bridge where he pulled over to the right off the bridge and behind the bridge abutment. After placing his flashers on, he ran back to where Mr. Heine was lying. Shoemaker testified Mr. Heine was at this point fully clothed, not bleeding, and was moving his right arm in and up-and-down fashion.
Mr. Shoemaker ran back somewhere between the two disabled vehicles waiving his arms up and down. He then realized that the three oncoming trucks were not going to stop. At this point, he yelled a warning to Mrs. Tyler, who had just exited her vehicle, and then ran to the side of the bridge where he prepared himself to jump. When Mr. Shoemaker realized the lead truck was going to proceed through the accident scene and strike Mr. Heine, he turned his head away choosing not to look. Mr. Eliseo Mikos, driving an eighteenwheeler tanker loaded with 8500 gallons of gasoline, then drove through the accident site striking Mr. Heine whose body came to rest one hundred and seventeen feet from the point of impact.
Paul Reamy, President of Transportation Safety Systems, qualified and testified as an expert in the field of federal highway safety regulations. Mr. Reamy was retained solely for the purpose of determining whether or not Eliseo Mikos and/or Petroleum Transportation Company were in complete compliance with the federal motor carrier safety regulations. After reviewing *839 several documents, including those concerning Mr. Mikos's qualifications, Mr. Reamy concluded that Mr. Mikos was not qualified to drive in accordance with the federal motor carrier safety regulations.
Mr. Frank Martineau was qualified and testified as an expert in the field of tachograph [1] analysis and driver profile. It was Mr. Martineau's undisputed opinion that:
(1) the tachograph in the truck Mr. Mikos was driving had been previously tampered with so as to not register greater than 55 MPH; that
(2) the tachograph disc readout for the evening of the accident clearly showed that Mr. Mikos had stopped his truck and opened his locked tachograph at approximately 11:45 p.m., thereby causing it to malfunction for the rest of the shift, including the time of the accident in question; that
(3) it was his experience that the reason tachographs are unlocked and stopped is to cover up the necessary speeding a driver must do in order to make up for lost time usually incurred by a previous or unscheduled stop; and that
(4) the tachograph readout for the night in question did indeed show that Eliseo Mikos had been speeding that night prior to 11:45 p.m.
Although Mr. Mikos testified he did not have a key to this tachograph and did not open it, we find his credibility lacking as he had been reprimanded by Petroleum Transport on a prior occasion for tampering with tachographs. Additionally, Eliseo Mikos, without doubt, lied to the investigating New Orleans police officer, Ross Mocklin, when Mocklin asked Mikos at the scene of the accident whether Mikos's truck had a tachograph and Mikos's response was that it did not.
Mikos, in accordance with federal regulations, filed his daily logs for the shift of July 22, 1980 and July 23, 1980, the shift on which the accident occurred. Mikos then filed an additional log entry for the second half of this shift for July 23, 1980. All of these logs carried identical identification numbers. The original log entry for July 23 corresponded to the log entry for July 22, but did not match the tachograph readout. The subsequent log entry for July 23 was in accord with the tachograph but did not match up to the log entry of July 22. After careful examination, Mr. Martineau concluded the additional log filed for the July 23 portion of the shift had been falsified by Mikos to correspond to the stopand-go events related by the tachograph.
Plaintiffs further put on Dr. Irving Rosen, an internist who had the opportunity to examine Mikos before and after the accident. Dr. Rosen's finding relative to this case was severe scarring on the macular area[2] of Mikos's right eye. Dr. Perez, an opthalmologist, followed Dr. Rosen and, although he did not examine Mikos, testified that a scarred macular area would reduce straight ahead vision and distort depth perception especially at night. Dr. Perez then concluded with the statement that 99 percent of the people with macular scarring have corresponding blind spots.
We are faced with an individual who has some degree of impairment to his eyesight and who unquestionably had been speeding on the evening of his accident and had also deliberately tampered with his tachograph and then falsified federal logs. All of the above goes directly to the character and credibility of Mr. Mikos. After careful review and due consideration, we find Mr. Mikos's credibility impeached and give little weight to his testimony. We *840 now must decide a most difficult question: whether or not, under the facts of this case, defendants were negligent.
The essence of appellant's case, at trial and on appeal, is that Petroleum Transport was negligent in permitting Mr. Mikos, with his impaired eyesight, to drive for them, and that Mr. Mikos was negligent in failing to reduce his speed so that he could stop safely once he noticed the flashing emergency lights of Mr. Shoemaker's vehicle. Appellees assert Mr. Mikos, faced with a sudden emergency situation, did a good job of saving more lives in that he was skilled enough to maneuver his truck through the accident scene without spilling and igniting his cargo.
At trial plaintiffs utilized George Meese, their expert witness on vehicular lighting and safety, who testified that under optimal atmospheric conditions the flashing emergency lights should have been visible at a distance of one mile; the Heine pickup truck side reflectors at five hundred feet (500'); and Mr. Heine at approximately two hundred forty feet (240'). These figures were based on data collected in tests conducted during World War II. Although Mr. Meese did not conduct direct testing with any of the vehicles involved in this case, he did however make a good faith effort in applying his data to achieve his results.
There is however a problem with Meese's testimony as it regards the flashing emergency lights. All questions and hypothetical situations posed to Meese assumed clear and unobstructive view of Shoemaker's emergency flashing lights. This however was certainly not the case as Shoemaker testified he pulled off the road and behind the bridge abutment.
A review of the evidence, photo marked Heine # 36, clearly shows that the Shoemaker vehicle had pulled off the interstate highway and was behind the bridge abutment. This photo appears to have been taken from a point close to the end of the bridge and from the center lane. Even from this close vantage point, we note that only the left flasher is visible from the roadway. Additionally, with the Tyler vehicle obstructing the right lane, there is the possibility that visibility of Shoemaker's left flasher was reduced even further. Accordingly, as the night in question did not present ideal atmospheric conditions and Meese's opinion concerning the emergency flashing lights were based on an unobstructive view, we find his estimate of one mile unreliable.
Nevertheless, we are faced with the question: could Eliseo Mikos have seen what he should have seen? For resolution of that question we rely upon the testimony of Dennis Mayeux, a United Parcel Service driver who had been following Mr. Mikos on the night of the accident.
Mr. Mayeux was proceeding east in the right lane when defendant Mikos entered the interstate highway at the Chalmette exchange. Upon Mikos's entering from the right, Mayeux moved into the center lane and remained there. Mayeux testified that the lighting conditions that night were, "very poor, extremely dark."
Mayeux testified that he and Mikos were both doing 55 MPH and that he was about one and one-half truck lengths (80 feet) behind Mikos. Mayeux noticed nothing unusual until Mikos began changing from the right lane into the middle. It was at this point that Mayeux saw the disabled Heine pickup truck. However, Mayeux was only able to see the Heine truck when Mikos's headlights struck it. Prior to that, Mayeux saw nothing in his own headlights.
When Mayeux saw the Heine pickup truck, he applied his brakes extremely hard causing a complete lock-up of all wheels. It was only after skidding and then coming to a stop on the right shoulder did Mayeux see the disabled Tyler vehicle. Mayeux testified that no lights were on either disabled vehicle and that his lights did not pick up anything at the accident scene. More importantly, Mayeux further testified that at no time did he see Shoemaker's emergency flashing lights from either the center lane when his view might have been obstructed by Mikos's truck or from the right lane shoulder after coming to a stop.
*841 Mr. Mayeux was faced with virtually the same situation as Mr. Mikos: two disabled vehicles with no lights occupying two of the three lanes of an interstate highway on a dark, cloudy night. Mr. Mayeux saw nothing of the accident scene in his own headlights and was not alerted to the danger until Mikos's headlights struck the unlit disabled Heine pickup. At no time did he see emergency flashing lights. Even with the prior warning provided by Mikos's headlights, Mayeux was barely able to bring his truck under control and stop just avoiding striking the bridge.
After reviewing the record in this case we find, as did the jury, that the driver of the truck, Eliseo Mikos, was not negligent in the operation of his employer's vehicle and that whatever visual impairment he might have had was of no moment in regards to the accident before us. Since the driver was not guilty of negligence and his eyesight was of no moment, plaintiff's claim against the driver's employer, Petroleum Transport Company, based on its alleged negligence in allowing Eliseo Mikos to operate their truck must also fall.
Accordingly, we affirm the judgment of the trial court dismissing plaintiff's suit against Eliseo Mikos and Petroleum Transport Company. Appellants are to pay all costs of this appeal.
AFFIRMED.
NOTES
[1] A tachograph is a device that attaches to the speedometer cable of a vehicle and records speed, braking, idling, mileage and virtually everything a vehicle does from the time the device is turned on at the beginning of a shift until it is turned off at the end of that shift, similar to the flight recorder used in aviation. The tachograph reduces all this information to a five-inch circular disc that can be reviewed and analyzed.
[2] The macular area is the center of the retina, described by the witness as the most important part of the eye. This area is responsible for 20/20 vision allowing a person to have sharp, straight ahead vision. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625908/ | 464 So. 2d 128 (1985)
DIVISION OF PARI-MUTUEL WAGERING, DEPARTMENT OF BUSINESS REGULATION, a State Agency, and Robert M. Smith, Director of the Division of Pari-Mutuel Wagering, and Gary Rutledge, Secretary of the Department of Business Regulation, Appellants,
v.
FLORIDA HORSE COUNCIL, INC., Calder Race Course, Inc., Tropical Park Inc., Gulfstream Park Racing Association, Inc., Hialeah, Inc., Tampa Bay Downs, Inc., and Tourist Attractions, Inc., Appellees.
No. 65820.
Supreme Court of Florida.
January 24, 1985.
Rehearing Denied March 15, 1985.
*129 Jim Smith, Atty. Gen., Louis F. Hubener, Asst. Atty. Gen., and Mitchell D. Franks, Chief Trial Counsel, Tallahassee, for appellants.
Wilbur E. Brewton and J. Riley Davis, Taylor, Brion, Buker & Greene, Tallahassee, for appellees.
ADKINS, Justice.
This cause is before the Court on appeal from a judgment entered by the Circuit Court of the Eleventh Judicial Circuit, sitting in Dade County. An appeal of the judgment was taken to the Third District Court of Appeal and that court has certified the case as requiring immediate resolution and has certified the following question as being of great public importance:
Whether sporting activities involving pari-mutuel wagering may be prohibited on Sunday.
We have jurisdiction pursuant to article V, section 3(b)(5), Florida Constitution. We find that sporting activities involving pari-mutuel wagering may be prohibited on Sunday and, therefore, answer the certified question in the affirmative.
Appellees, race track permit holders who conduct horseracing at various tracks in Florida, filed their complaint in this action in the circuit court, Dade County, Florida, in December, 1983. They sought to have declared unconstitutional those provisions in chapter 550, Florida Statutes (1981), which prohibit horseracing and pari-mutuel gambling on Sunday.
On July 26, 1984, the circuit court entered a summary judgment in favor of appellees ruling that the provisions of chapter 550 that ban the conduct of pari-mutuel wagering on Sundays were unconstitutional.
Appellants timely filed a notice of appeal. The Third District Court of Appeal certified the case to be of great public importance and to require immediate resolution by this Court. We accepted jurisdiction of the case on September 10, 1984.
A study of the early American Sunday closing laws will reveal that they originated from and were founded upon religious principles and beliefs. The original purpose of these laws was to protect the Christian Sabbath pursuant to the Biblical command to "Remember the Sabbath Day to Keep it Holy." Exodus 31:14.
In Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S. Ct. 461, 92 L. Ed. 649 (1948), and Everson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711 (1946), the United States Supreme Court held that the fourteenth amendment protected the individual against any state statute which infringed upon his individual convictions or beliefs. Thus, it was inevitable that Sunday closing legislation in our country would be subject to constitutional attack.
*130 A further examination of the judicial history of these laws in the state of Florida will reveal that they will not be upheld upon any religious principle, tenet, belief or admonition because of our constitutional provisions requiring the complete separation of church and state. Art. I, § 3, Fla. Const.; Henderson v. Antonacci, 62 So. 2d 5 (Fla. 1952). Case law dictates that if such laws are to pass constitutional scrutiny, they must be upheld as a valid exercise of the state's police power and must be rationally related to a legitimate state purpose. 62 So.2d at 8. More specifically, the Sunday closing laws must bear a rational relationship to the public health, safety, morals, or general welfare of our citizenry. Id.
Appellant contends that the laws prohibiting Sunday sporting activities involving pari-mutuel wagering are rationally related to a legitimate state purpose and are therefore constitutionally sound. We agree.
This Court long ago recognized the intrinsically problematic character of gambling and horse racing and the state's right to strictly control it.
Authorized gambling is a matter over which the state may exercise its police power in a more arbitrary manner because of the noxious qualities of the enterprise as distinguished from those enterprises not affected with a public interest and those enterprises over which the exercise of the police power is not so essential for the public welfare.
Hialeah Race Course, Inc. v. Gulf Stream Park Racing Association, 37 So. 2d 692 (Fla. 1948), appeal dismissed, 336 U.S. 948, 69 S. Ct. 885, 93 L. Ed. 1104 (1949). This language was reiterated a year later in Rodriguez v. Jones, 64 So. 2d 278 (Fla. 1953). In both Hialeah and Rodriguez the Court noted that gambling is inherently dangerous to society and for that reason may be lawfully prohibited. In 1978, this Court recognized once again that it is within the police power of the state to enact laws to suppress gambling. Schultz v. State, 361 So. 2d 416 (Fla. 1978). Thus, it is well established that the legislature has broad discretion in regulating and controlling pari-mutuel wagering and gambling under its police powers. In the instant case, it would seem that the legislature could reasonably find that the Sunday racing and betting restrictions serve several legitimate state purposes which promote the public health, safety, morals, and general welfare of the citizens of the state of Florida. The restrictions serve these legitimate purposes: 1) they encourage people to spend their weekend leisure time at nongambling, presumably more healthy recreational pursuits and other activities; 2) closing such facilities on what might otherwise be the busiest day of the week could help curb the compulsive gambler syndrome; and 3) racing on less busy days means there is less opportunity for mischief that sometimes attends these events, and therefore a lighter burden on law enforcement authorities is created. Thus, we find that the statutes in question do serve legitimate state purposes. In McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961), the United States Supreme Court ruled that not only do states have the power to enact laws setting aside a uniform day of rest, but also they have the power and authority to fix the day, and that day may be Sunday. The mere fact that the state of Florida has no uniform day of rest for other businesses does not preclude the legislature from having a day of rest and surcease from racing and pari-mutuel wagering. In McGowan, the Maryland law under review required numerous businesses to close on Sunday but also provided many exceptions to that law. As to the argument that this constituted unlawful discrimination, the Court stated:
[T]he Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact *131 that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.
366 U.S. at 425-26, 81 S.Ct. at 1104-05 (citations and footnote omitted). The Supreme Court did not require the existence of a pervasive scheme of Sunday closing in order to justify any closing requirement. Rather, the test is whether the law "is wholly irrelevant to the achievement of the state's objective. Id. Moreover, this Court has held that classifications under the police power will not be judicially annulled unless wholly without a rational basis. Hamilton v. State, 366 So. 2d 8 (Fla. 1978).
In Rodriguez v. Jones, 64 So. 2d 278 (Fla. 1953), this Court found that treating jai alai frontons as a distinct class was appropriate because the restriction at issue applied equally to all frontons "similarly circumstanced." Chapters 550 and 551, Florida Statutes, uniformly require all sporting activities involving pari-mutuel gambling to cease operation on Sunday. Those activities include thoroughbred racing, harness racing, quarterhorse racing, dog racing and jai alai. Under the statutes in question, all pari-mutuel facilities appear to be "similarly circumstanced." The record in the instant case is barren of any indication to the contrary.
Thus, we find that the closing requirement in question does not constitute unlawful discrimination and is therefore rationally related to the aforementioned legitimate state purposes. The legislature has the discretion to designate a day of surcease from sporting activities involving pari-mutuel wagering and to specify the day, and that day may be Sunday.
Accordingly, the decision of the trial court is reversed.
It is so ordered.
BOYD, C.J., and OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur. | 01-03-2023 | 10-30-2013 |
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