url stringlengths 55 59 | text stringlengths 0 818k | downloaded_timestamp stringclasses 1 value | created_timestamp stringlengths 10 10 |
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/2453271/ | 253 P.3d 95 (2011)
In re Kimberly L. GRIJALVA, Attorney at Law.
No. 200,931-0.
Supreme Court of Washington.
May 6, 2011.
ORDER OF SUSPENSION PURSUANT TO ELC 7.1
¶ 1 This matter came before the Supreme Court on the Washington State Bar Association's Petition for Immediate Interim Suspension of Kimberly L. Grijalva, pursuant to ELC 7.1, for conviction of a crime. The petition is based upon the Judgment of Conviction and Sentence entered in State v. Grijalva, Yakima County Superior Court, Case Number XX-X-XXXXX-X. Kimberly L. Grijalva was found guilty on April 11, 2011, of violating RCW 9A.56.040(l)(a), 9A.56.020(1)(a) and 9A.08.020 (second degree theft), a class C felony. Now, therefore, it is hereby
¶ 2 ORDERED:
¶ 3 Kimberly L. Grijalva is suspended from the practice of law in the State of Washington pending final disposition of disciplinary proceedings pursuant to ELC 7.1.
For the Court
/s/ Madsen, C.J.
CHIEF JUSTICE | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2453300/ | 256 P.3d 1099 (2011)
243 Or. App. 390
STATE
v.
HOOPER.
A142794
Court of Appeals of Oregon.
June 8, 2011.
Affirmed without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2406888/ | 385 S.W.2d 4 (1964)
P. L. CALLAWAY, Appellant,
v.
Logan Lee PERDUE, Appellee.
No. 5-3374.
Supreme Court of Arkansas.
November 23, 1964.
Rehearing Denied January 11, 1965.
*6 William H. Drew, Lake Village, for appellant.
Switzer & Griffin, Crossett, for appellee.
HARRIS, Chief Justice.
In September, 1944, P. L. Callaway and his wife, Irene, conveyed 320 acres of land to their grandson, Logan Lee Perdue, age one and one-half years. In April, 1955, Mrs. Callaway was appointed guardian of the person and estate of the minor. In February, 1963, Mrs. Callaway died.
In April, 1963, Logan Lee Perdue, then twenty years of age, whose disabilities as a minor had been previously removed,[1] instituted suit against his grandfather and H. A. Etheridge, alleging that these individuals had, in 1953, cut and removed timber growing on the lands (which had been deeded to him by his grandparents) of the value of $5,376.00, "and did convert and dispose of same to their own use. * * *" Callaway filed a general denial, and Etheridge answered, admitting purchasing and removing timber from the lands in question, but asserting that he contracted with Callaway for such purchase and removal. The case proceeded to trial, but at the conclusion of the presentation of the evidence, appellee took a non-suit as to defendant Etheridge. The jury returned a verdict against Callaway in the amount of $13,382.40, representing treble damages for the value of the timber taken. From the judgment so entered by the court, comes this appeal. Appellant sets out seven points for reversal, which we proceed to discuss.
It is first asserted that the action against appellant is "barred by the Statute of Frauds." We do not see that the Statute of Frauds has any application in this case whatsoever. Appellee's case is predicated upon the fact that Etheridge purchased the timber from Callaway, and had same cut and removed; that Callaway had no right to sell the timber, and wrongfully disposed of it. There was no written contract, but the Statute of Frauds, if applicable at all, could only relate to the transaction between Callaway and Etheridge, and certainly has nothing to do with the rights of the true owner of the property. According to Perdue's allegations, Callaway and Etheridge, respectively, wrongfully sold, and purchased, appellee's timber, and converted the proceeds to their own use.
It is next asserted that the proof is insufficient to support the verdict. It is true that the evidence is rather meager. The principal testimony connecting Callaway with the transaction is that of defendant Etheridge who testified that Callaway told him (Etheridge) that he wanted to sell some timber on his land, and Etheridge was to stop by the Callaway home and advise Mrs. Callaway whether he was interested in purchasing same. Etheridge, who was engaged in buying and selling timber for Bradley Lumber Company, left word with Mrs. Callaway that he would be glad to handle it. According to Etheridge, Mrs. Callaway told him to go ahead and cut the timber. The witness stated that all of his negotiations were carried on with the wife, and after cutting the timber, he paid Mrs. *7 Callaway. Subsequently, however, he met Mr. Callaway, and the latter told him that he had made a $20.00 mistake in the amount paid Mrs. Callaway, and Etheridge thereupon paid appellant an additional $20.00. Logan Lee Perdue, appellee, testified that his grandfather told him that he had cut the timber, and Homer Perdue, father of appellee, likewise testified that Callaway had told him ten or twelve years back that "he had cut and sold Logan Lee's timber." The witness stated that he went to the land belonging to his son, and observed that the timber had been cut; that no money was turned over to him. Accordingly, the only evidence that appellant participated in the trespass and conversion was the statements of Etheridge that he had been approached by Callaway relative to the sale, and had paid $20.00 extra to appellant; the statement of appellee that his grandfather had told him that he (the grandfather) had sold the timber, and third, the evidence of Homer Perdue, father of appellee, that P. L. Callaway had made the same statement to him.[2]
The aforementioned evidence, though scanty, was, we think, sufficient to take the case to the jury.
Appellant contends that, even if there is sufficient evidence to present a jury question, the amount determined by the jury is excessive because treble damages were awarded.[3] This argument is based on the contention that the pertinent statutory provision (Ark.Stat.Ann. § 37-204 [1947]) requires that actions for penalty be commenced within two years. The entire section reads as follows:
"Actions for recovery of statutory penalty Two years. All actions on penal statutes, where the penalty, or any part thereof, goes to the State, or any county or person suing for the same, shall be commenced within two [2] years after the offense shall have been committed, or the cause of action shall have accrued."
Section 37-226 is relied upon by appellee as tolling Section 37-204 under the facts of this case, and permitting his recovery of treble damages. That section reads as follows:
"If any person entitled to bring any action, under any law of this state, be, at the time of the accrual of the cause of action, under twenty-one [21] years of age, or insane or imprisoned beyond the limits of the state, such person shall be at liberty to bring such action within three [3] years next after full age, or such disability may be removed."
We think this last statute is controlling. In the early case of Nebraska National Bank v. Walsh, 68 Ark. 433, 59 S.W. 952, this court construed Section 4826 of Sandels and Hill Digest, that section being absolutely identical to Section 37-204, heretofore quoted, and held contrary to appellant's contention.
For the fourth point for reversal, it is argued that the trial court erred in not allowing a continuance because of the illness of the appellant, and in refusing to allow certain interrogatories, propounded to him, together with answers, to be read to the jury. We find no merit in this contention, and actually the point may be peremptorily disposed of because of the fact that the record does not reflect that any motion for a continuance was made at the time of *8 trial. However, inasmuch as this case is going to be reversed on a subsequent point, the question may well arise again as to whether the interrogatories can properly be used, particularly in view of the fact that appellant has apparently died since the judgment was rendered. Although no Order of Revivor appears in the record, appellant evidently is now deceased, since the transcript reveals a motion by "Don F. Callaway, Executor, of the Estate of P. L. Callaway, Deceased," through his attorney, for an extension of time in which to file this appeal.[4]
On October 21, 1963, appellee served notice on appellant for the taking of the discovery deposition of Callaway on November 15, 1963. Counsel then filed his motion, seeking to prohibit appellee from taking this deposition, setting out that Callaway was a patient in the Lake Village Infirmary, and previously had been confined to his bed at his home for more than eight months. An affidavit was executed by Dr. Alan G. Talbot, enumerating the ailments of Callaway, and further stating:
"* * * It is further the opinion of this attending physician that to subject the patient to interrogation by reason of his illnesses as heretofore set out, will be detrimental to the patient in aggravating his physical condition. That such interrogation would not only aggravate his physical condition but would probably create such a state of tension that he may suffer serious relapses and actual danger to his life."
The record does not reflect what action, if any, was taken by the court. The trial of the case was held on November 20, 1963, but as previously stated, no request for continuance appears in the transcript. However, prior to the notice of the taking of depositions, appellee had, on August 5, 1963, propounded to appellant certain interrogatories, and these were answered on August 16, 1963. At the trial, counsel for Callaway offered into evidence the interrogatories and answers thereto, contending that he was entitled to do so, and stating:
"* * * It is a matter of public knowledge that the Defendant, P. L. Callaway, has been confined in bed for more than eight months and is currently confined in the Lake Village Infirmary suffering from maladies, as shown by the affidavit of the doctor, duly filed herein, and that he is physically unable to even sit, much less come to this courtroom."
The assertion that the interrogatories and answers were admissible is based on Ark.Stat.Ann. § 28-355 (Repl.1962) which first makes provision for the service of written interrogatories upon any party by an adverse party, and then reads as follows:
"Interrogatories may relate to any matters which can be inquired into under Section 1(b) [§ 28-348, subsec. (b)], and the answers may be used to the same extent as provided in Section 1(d) [§ 28-348, subsec. (d)] for the use of the deposition of a party."
It will be noted that the quoted provision refers back to Section 28-348, Subsection (d), which reads as follows:
"At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions: * * *
"(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: 1, that the witness is dead; or *9 2, that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or 3, that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; * * *"
Careful research reveals that counsel is in error in his contention, and he is not entitled to use these interrogatories. Section 28-348(d) is an exact copy of Rule 26 (d), Federal Rules of Civil Procedure, and the quoted portion of Section 28-355 is identical with the corresponding portion of Rule 33. Federal cases do not sustain appellant's position, and the answers to interrogatories are generally held inadmissible, if offered on behalf of the party making answer, as "self-serving declarations." In Haskell Plumbing and Heating Company v. Weeks, et al., 237 F.2d 263, 16 Alaska 436, the Circuit Court of Appeals for the Ninth Circuit stated:
"It seems clear that the trial court was in error in permitting these answers, which were self-serving, to be introduced on behalf of the plaintiffs and that this error was compounded by refusal to permit the plaintiffs to be cross-examined upon the question of the amount of their losses. It is true that Rule 26(d) permits the use of depositions or portions thereof, but only `so far as admissible under the rules of evidence'. The rules of evidence would permit answers such as these to be used against the party giving them, but because they are self-serving they should not have been admitted on behalf of these plaintiffs."
See also Bailey v. New England Mutual Life Ins. Co. of Boston, Mass., D.C., 1 F.R.D. 494; United States v. Smith, D.C., 95 F. Supp. 622; Stottlemire v. Cawood, D.C. 213 F. Supp. 897; Coca Cola Co. v. Dixi-Cola Laboratories, D.C., 30 F. Supp. 275. One of the principal reasons for not allowing the use of the interrogatories on behalf of the answering party is the fact that there is no opportunity for cross-examination. In reviewing various cases, one exception to the non-admissibility of interrogatories is noted, viz, where the adverse party offers part of the answers to the interrogatories, the person making answer is entitled to read any other answer which tends to explain on correct the answers offered by the adverse party. No cases involving the death of a party who had previously answered interrogatories have been found, but Moore, in Volume 4, (2d Ed.) Federal Practice, Page 2343, gives a hypothetical case which seems to cover the point at issue. The illustration given, with the names of the parties here inserted in parenthesis, is as follows:
"Suppose that in response to P's (Perdue's) interrogatories D (P. L. Callaway) served answers, then died and his personal representative, X (Don Callaway, Administrator of the Estate, hereinafter called Don) was substituted. To the extent that D's (P. L. Callaway's) answers contained admissible evidence, such as admissions, P (Perdue) could use them either under Rule 26(d) (2) or (d) (3). But X (Don), despite Rule 26(d) (3), should not be able to use material in the answers favorable to X's (Don's) case or defense, since D's (P. L. Callaway's) answers, although under oath, were not subject to cross-examination by P (Perdue), and hence are not admissible in evidence against P (Perdue)."
It is asserted that the trial court erred in excluding from the evidence letters of guardianship issued to Irene Gordon Callaway (wife of P. L. Callaway) as guardian of the person and estate of appellee. We find no merit in this contention. In the first place, the timber was cut in 1953, and the letters of guardianship (which although not admitted into evidence, are in the record) were issued in *10 April, 1955, and it is difficult to understand from the argument the purpose appellant had in mind in tendering the exhibit for introduction. Of course, the letters do not show whether the money received from the timber sale was placed in the guardianship account, and no effort was made to introduce any annual accountings that might have been filed by the guardian. At any rate, under the proof in the present record, we are unable to determine the pertinency of the proffered exhibit.
Appellant contends that a mistrial should have been declared by the court. The suit was originally commenced against both Callaway and Etheridge, and Etheridge had employed one Ellis Coulter to cut the timber on the 320 acres here involved. Coulter, while testifying concerning his employment, made certain statements which were admissible as to Etheridge, by virtue of the fact that Etheridge was a defendant. However, at the conclusion of all the evidence, appellee took a non-suit as to this defendant, and appellant asserts that this action was prejudicial to him. The motion for a mistrial was an alternative motion, the first motion being a request for a directed verdict. Though some testimony by Coulter (quoting Etheridge as to the amount that defendant had paid Callaway for the timber) was hearsay evidence as to Callaway, counsel did not ask the court to apprise the jury that the testimony of Coulter was not admissible against Callaway, nor was there any request for an instruction to this effect. We find no error under this point.
Also, while on the stand, Coulter stated that he had noted in a memorandum book the number of feet of timber which had been cut, and the price he received per thousand. The witness testified that the notations referred to were placed in a book at the time of the cutting, but the book that he referred to while testifying was not the 1953 book.
"I had a memorandum book, which I carried in my pickup and in some way they rolled it around and dropped it and there was oil from the saw and different things and some of it got on this book, I transferred this stuff onto this 1956 book."
The introduction of this last book was objected to by appellant, and the court stated:
"I want this witness to find his record book; however, if he can't find the book this was transferred from, I will allow it to be used in evidence."
Coulter subsequently testified that he could not find the original record book, but the second book does not appear in the transcript. At any rate, appellant does not designate the introduction of the exhibit as one of his points of error, and we do not pass on it.
Finally, it is contended that certain instructions were erroneous, and we agree that the giving of Instruction No. 4 constituted reversible error. The jury was instructed:
"If you find the issues in favor of Logan Lee Perdue, you will award him such sum as you find will be equal to 3 times the value (at the stump) of the timber so damaged, broken, destroyed or carried away."
The court had previously quoted the statute on single damages (Ark. Stat.Ann. § 50-107 [1947]), but it will be noted that the questioned instruction positively directs the jury to grant treble damages if they find for appellee. It is our opinion that, under the proof in this case, a jury question was presented as to whether appellant was liable for single or treble damages.
It is true that our statute relative to treble damages (the pertinent parts of which have already been quoted in Footnote 3) does not actually use any words which require the trespasser to hold an evil intent or act in bad faith before being liable *11 for the penalty. Yet, our cases make clear that a necessary element to justify treble damages is intent of wrongdoing, though such intent may be inferred from the carelessness, recklessness, or negligence of the offending party. In Laser v. Jones, 116 Ark. 206, 172 S.W. 1024, this court had occasion to interpret Section 7976 of Kirby's Digest, which reads identically with Section 50-105 of the present statute. There, in an opinion by the late beloved Justice Frank G. Smith, this court said:
"It is therefore proper to consider the use which may be, and is, made of the tree, and if the tree adds to the value of the land, while its destruction detracts from its value, then this difference in value is the measure of the recovery, even against one who, without malice, destroys it. But, if the tree was maliciously[5] destroyed, the damages recoverable are treble this value."
In Fogel v. Butler, 96 Ark. 87, 131 S.W. 211, it was said:
"It will be observed that the instruction as given by the court told the jury that, if they found that the defendant cut the timber without authority and knowingly, the jury should allow three times the value of the timber. Now, it is manifest that the court meant and that the jury understood that, before treble damages should be given, the jury must find that not only the defendant had no authority to cut the timber, but that they knew they had no such authority."
In Floyd v. Richmond, 211 Ark. 177, 199 S.W.2d 754, we stated:
"Appellant next contends `that there was nothing in the record whatever to warrant the submission to jury of the question of punitive damages, and that in so doing the learned trial court gravely prejudiced this appellant and committed reversible error.' We think this contention untenable for the reason that as has been indicated, there was evidence from which the jury might have found that there was an element of wilfulness in appellant's action in severing the trees and this warranted instructions on this issue."
See also Case v. Hunt, 217 Ark. 929, 234 S.W.2d 197, where we said:
"Our statutes do not impose double or treble damages upon one who cuts timber from the land of another unless he does so willfully and intentionally."
Also see Freeze v. Hinkle, 229 Ark. 714, 317 S.W.2d 817.
It is apparent from these citations that treble damages are only invoked where one cuts timber with the intention of depriving the true owner of the value thereof. We do not think that one acting in good faith is liable for treble damages.
The circumstances in the instant case appear to be most unusual, and a study of the testimony leaves several questions unanswered. It will be recalled that the particular property in question was deeded to appellee by the grandfather (who is the defendant in this case), and the grandmother (who subsequently was appointed guardian). There is no explanation as to why the grandmother, rather than the child's father or mother, was appointed guardian, nor can the answer be found in the record as to why the grandparents deeded the property to the one and one-half year old grandchild. But unless they were endeavoring to defraud creditors (of which there is not the slightest indication in the record), their motive would appear to have been a good one, based on the love and affection for this child.
The record reveals the following testimony of Logan Lee Perdue, appellee herein, during his examination by counsel:
"Q. Now will you state to this Jury when you first can recall owning this *12 property, the deed of which has been entered in the record, which was just when you were a very small child. Do you remember when you first recall owning this property?
"A. The first time that I can recall was during high school, when I was in the 10th and 11th grades.
"Q. Did you ever have an opportunity to speak with the Defendant, Mr. Callaway, concerning this property?
"A. Yes, I did.
"Q. Will you state to the Jury what your conversation with Mr. Callaway consisted of?
"A. I recall that during high school, when I started to make my decision to attend college, I went to see my grandparents and he told me that `I cut your timber and I have enough money for you to attend college and a little left over.' * * *
"Q. Where were you?
"A. We were in the bedroom at his home.
"Q. What grade were you in then?
"A. I do not recall exactly 10th or 11th grade.
"Q. How old would you have been then?
"A. I would say 15 or 16.
"Q. Sir, since that time have you finished high school?
"A. Yes.
"Q. Have you gone to college?
"A. Yes.
"Q. When did you go to college?
"A. I went to college in 1960.
"Q. Where did you go?
"A. I went to Ouachita.
"Q. How long did you go to Ouachita?
"A. I went to Ouachita a year."
Subsequently, Perdue testified that he attended Ouachita for two semesters, but only finished one; that he received money from his grandfather during both semesters, and that in the spring semester of 1962, he attended Southern State; that he also received money from his grandfather at that time, and that the grandfather offered to send money during the summer semester, but that he did not take it. He also testified that his grandmother sent him money about once a month. Appellee testified that this money did not come from the timber sale, but rather, was derived from bonds which had been purchased by his parents, but were in the possession of his grandfather. When asked how he knew where the money came from, he replied, "I do not know definitely, but merely what my mother and father have told me." He testified that these bonds were in his name, and that of the grandfather. There is no explanation of why bonds, purchased by the parents, were in possession of the grandfather, and bearing the grandfather's name. The father, Homer Perdue, stated that he and his wife had bought some "very small" bonds, and had given them to the boy, leaving them in Callaway's safe deposit box. He also stated that he and Callaway had purchased $1,000.00 in bonds for the boy "from some profits from a cattle deal. * * *"
We think the circumstances set out made a jury question of whether Callaway had acted wrongfully. Why did the grandparents deed the property to the boy if they intended to reap any personal benefits from the lands or timber? Certainly, if the grandfather had intended to commit a wrongful act, he would not have told his grandson that he had sold the timber, and that there should be enough for college with "a little left over." Apparently the grandson "fell out" with his grandfather *13 since he testified that he tore up a check that had been given to him by the latter.
Under the instruction in question, the jury was given no opportunity to find that Callaway acted in good faith, and we think that this was reversible error. The finding that this instruction was erroneous means also that Instruction No. 2 will have to be reworded.
Reversed and remanded.
NOTES
[1] The order removing disabilities does not appear in the record, but Perdue testified that this had been done, and no question was raised by appellant in the trial court.
[2] The record does not reflect the reason for the failure of Homer Perdue to take some action on behalf of his son at the time of learning that the timber had been cut and removed.
[3] Ark.Stat.Ann. § 50-105 (1947) provides, "If any person shall cut down, injure, destroy or carry away any tree placed or growing for use or shade, or any timber, rails or wood, standing, being or growing on the land of another person, * * * in which he has no interest or right, standing or being on any land not his own, * * * every person so trespassing shall pay the party injured treble the value * * * with costs."
[4] While the cause was likely revived in the name of the executor, no order appearing, we have continued to refer to P. L. Callaway as "appellant."
[5] Our emphasis. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1298374/ | 260 Wis.2d 43 (2003)
2003 WI 20
658 N.W.2d 795
STATE of Wisconsin, Plaintiff-Appellant,
v.
Jeremy T. GREER, Defendant-Respondent.
No. 01-2591-CR.
Supreme Court of Wisconsin.
Oral argument January 21, 2003.
Decided March 25, 2003.
*44 For the plaintiff-appellant there were briefs and oral argument by David J. Becker, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
For the defendant-respondent there was a brief and oral argument by Donna L. Hintze, assistant state public defender.
[1]
¶ 1. PER CURIAM.
The court is equally divided on whether to affirm or reverse the judgment of the circuit court for Milwaukee County. Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice David T. Prosser would affirm. Justice William A. Bablitch, Justice N. Patrick Crooks, and Justice Diane S. Sykes would reverse. Justice Jon P. Wilcox did not participate.
[2]
¶ 2. When a certification or bypass results in a tie vote by this court, the better course of action is to vacate our decision to accept certification or bypass and remand the cause to the court of appeals. State v. Watson, 209 Wis. 2d 281, 562 N.W.2d 151 (1997) (remanding to court of appeals on a tie vote on certification); State v. Richard Knutson, Inc., 191 Wis. 2d 395, 396-97, 528 N.W.2d 430 (1995).
¶ 3. Accordingly, we vacate our order granting certification and remand to the court of appeals.
*45 By the Court.The order granting certification is vacated and the cause is remanded to the court of appeals. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1554008/ | 26 So.3d 975 (2009)
L.C. DESHOTEL
v.
VILLAGE OF PINE PRAIRIE.
No. 09-670.
Court of Appeal of Louisiana, Third Circuit.
December 9, 2009.
Rehearing Denied January 27, 2010.
*976 Jonathan Clyde Vidrine, West & Vidrine, Ville Platte, LA, for Plaintiff-Appellee, L.C. Deshotel.
Randall Brian Keiser, Keiser Law Firm, Alexandria, LA, for Defendant-Appellant, Village of Pine Prairie.
Court composed of ELIZABETH A. PICKETT, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
PICKETT, Judge.
The Village of Pine Prairie (the Village) appeals a judgment of the trial court ordering it to pay the Village's share of the contributions to the Municipal Police Employees' Retirement System (MPERS) for former Police Chief L.C. Deshotel retroactive to the date of his appointment as chief in 1991. Chief Deshotel appeals the trial court's judgment insofar as it denied his demand for the payment of interest and penalties for the purchase of credit in MPERS.
STATEMENT OF THE CASE
Chief Deshotel was appointed Chief of Police for the Village of Pine Prairie in September 1991. He subsequently ran for re-election and remained as chief of police until his retirement on December 31, 2008. Shortly after his initial appointment, Chief Deshotel asked Mayor Terrell McCauley if he was eligible for a retirement system. Mayor McCauley indicated that there was no retirement other than the Social Security system. In fact, this information was incorrect. Pursuant to La. R.S. 33:2373, any police employee in a municipality that had not passed an ordinance exempting the municipality from participation in MPERS before January 1, 1978 was automatically a member of MPERS unless he executed an affidavit opting out of the system. It is uncontradicted that the Village had not passed the required ordinance, and it never presented Chief Deshotel with any form giving him the opportunity to opt out of the system.
Chief Deshotel did not pursue the matter any further until Clifford Wayne Clark was hired as a police officer for the Village. When Mr. Clark was hired in 2001, he asked the mayor and the town clerk if he was eligible for any retirement, and they informed him that he was not. Chief Deshotel and Mr. Clark frequently discussed the issue of retirement. Mr. Clark attended a police academy in St. Martinville from January through March 2004. While there, he discussed the retirement system with some of the other attendees and determined that he was likely eligible for MPERS. When Mr. Clark returned to the Village, he passed along this information to Chief Deshotel. Chief Deshotel accompanied Mr. Clark and two other Village police officers to a meeting with an attorney in Alexandria on about April 17, 2004. The attorney told Chief Deshotel and the officers that they were *977 eligible for MPERS but they would have to buy back their earlier years in the system to get credit. Mr. Clark contacted MPERS, who informed him that the Village was required to give him the option to enroll MPERS. Mr. Clark asked MPERS to send the information to the Village. At this time, the Village began to offer retirement to all of its officers. However, the Village determined that because Chief Deshotel was over fifty at the time, he was ineligible to enroll in MPERS.
Chief Deshotel continued to pursue the matter. In October 2006, he got a copy of the MPERS handbook which indicated he was eligible for the system if he purchased his credit dating back to 1991 despite his age. He contacted an attorney and began discussions with MPERS and the Village. MPERS ultimately determined that he could become a member if he purchased all of his credit in the system back to his original date of hire within six months of his enrollment. He enrolled in the system and began making payments on October 26, 2006. The cost to purchase 15.14 years of credit (from September 5, 1991 through October 26, 2006) would be $131,628.06, broken down as follows:
Employer contributions $43,838.56
Employee contributions $22,065.80
Interest and Penalties for
Late Enrollment $65,723.70
Chief Deshotel entered into a payment plan with MPERS to pay the entire amount over five years. He demanded that the Village pay the employer portion and the penalties and interest. When the Village refused, he filed this suit on June 29, 2007.
Following a trial on November 18, 2008, the trial court found in favor of Chief Deshotel. The trial court denied the Village's exception of prescription. The trial court ordered the Village to pay its portion, but specifically stated that no penalties or interest should accrue against Chief Deshotel's account. The Village filed a Motion for a New Trial asking the trial court for a specific amount that the Village had to pay, but the trial court denied the motion. The Village and Chief Deshotel have both appealed the judgment of the trial court.
ASSIGNMENTS OF ERROR
The Village asserts three assignments of error:
1. The trial court committed legal error when it denied the exception of prescription.
2. The trial court committed legal error when it ruled that the Village owed the plaintiff a duty to (a) educate him on his legal rights and duties under the MPERS statute, and (b) provide plaintiff with an MPERS enrollment affidavit never given to the Village.
3. The trial court abused its discretion when it denied the "limited" motion for a new trial.
Chief Deshotel asserts one assignment of error, arguing that the trial court erred by not casting the Village with the penalties, interest, and experience costs.
DISCUSSION
We begin our analysis of this case by addressing the second assignment of error raised by the Village. The Village argues that the trial court erred in finding that it owed a duty to Chief Deshotel to inform him about MPERS. Instead, argues the Village, the Board of Trustees of MPERS has the duty to inform new employees that they are eligible for the retirement system.
"The question of whether a duty exists in a particular set of circumstance is a question of law for the court to decide." Mathieu v. Imperial Toy Corp., 94-952, p. 5 (La.11/30/94), 646 So.2d 318, 322. This court has held that a school board does not *978 have a duty to inform an employee about the existence of a public retirement system. Simon v. Lafayette Parish Sch. Bd., 93-700 (La.App. 3 Cir. 2/2/94), 631 So.2d 626. In our case, though, the evidence is uncontroverted that Chief Deshotel asked the mayor at the time he was appointed if he was eligible for a retirement system and that the mayor incorrectly told him that he was not. In fact, the statute creating MPERS clearly indicates that Chief Deshotel was eligible for membership in the retirement system in 1991. La. R.S. 33:2373. We find that while the Village may not have had a duty to inform Chief Deshotel about his eligibility, the Village, as his employer, did have a duty to give Chief Deshotel accurate information about his eligibility for MPERS. The Village breached that duty in 1991.
Having established that the Village owed a duty to Chief Deshotel, we now turn to the Village's first assignment of error. The Village argues that Chief Deshotel's claims against the city have prescribed. We must agree.
The trial court found that the applicable prescriptive period is the ten year period for personal actions. In Fishbein v. State ex rel. Louisiana State University Health Sciences Center, 04-2482, p. 8 (La.4/12/05), 898 So.2d 1260, 1266 (footnotes omitted), the supreme court stated:
[Contributions to retirement plans are a form of deferred compensation. Consequently, we find that plaintiff's claim is one for compensation for services rendered. The applicable prescriptive period, then, is found in La. C.C. art. 3494, which provides that an action for the recovery of compensation for services rendered is subject to a liberative prescription of three years.
The record is also clear that in April 2004, Chief Deshotel became aware that he should have been allowed to participate in the retirement system in 1991 after he attended the meeting with an attorney in Alexandria. While Chief Deshotel could not remember the discussions at the meeting, Mr. Clark was clear that during this meeting they discussed the issue of the Village paying some portion of the retirement dating back to 1991. Whether or not prescription had been interrupted or suspended before April 2004, we find that prescription began to run when Chief Deshotel discovered that he had a claim against the Village. His continued reliance on the mayor's advice did not suspend or interrupt prescription. Therefore, when Chief Deshotel filed suit in June 2007, the only claims that had not prescribed were those from June 2004 forward.
In its third assignment of error, the Village argues that the trial court erred by not casting the Village with a dollar amount of damages. In his assignment of error, Chief Deshotel argues the Village should be cast with the additional costs associated with the purchase of his previous time in the retirement system. Since we find that these claims have prescribed, we pretermit discussion of these assignments of error.
CONCLUSION
The judgment of the trial court is reversed. Costs of this appeal are cast against Chief Deshotel.
REVERSED.
GENOVESE, J., concurs in the result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2459414/ | 516 S.W.2d 882 (1974)
Gayle Ramage NELSON and William Robert Ramage, Appellants,
v.
TEXARKANA HISTORICAL SOCIETY AND MUSEUM et al., Appellees.
No. 74-182.
Supreme Court of Arkansas.
December 16, 1974.
Rehearing Denied January 20, 1975.
Atchley, Russell, Waldrop & Hlavinka by Stephen Oden, Texarkana, for appellants.
Autrey & Weisenberger by LeRoy Autrey, Texarkana, for appellees.
BROWN, Justice.
This is a will contest case. The appellants are Gayle Ramage Nelson and William Robert Ramage, niece and nephew, and sole heirs at law of the testatrix, Maye Elizabeth Ramage Davis; the appellees are Texarkana Historical Society and Museum and State First National Bank of Texarkana, the special administrator. The probate court admitted to probate an instrument purporting to be the will of Maye Elizabeth Ramage Davis, a widow 78 years of age. The holographic instrument was not signed; the only place in the purported will where her name appeared was in the body thereof.
Appellants contend that decedent's name appearing in the body of the instrument was not written with the intent of authenticating or executing such instrument and therefore it was error to admit it to probate. Appellees contend the signature in the body of the will satisfied the requirements for validity, and (2) the court correctly considered extrinsic evidence to show decedent's testamentary intent.
The instrument admitted to probate reads as follows:
Will December 18th 1973
I am in my sane mind today.
And I am leaving all my antiques in the living room, dining room and Victorian room and hall to Texarkana Museum in memory of my mother and father, W. R. *883 Ramage and brother Robert Ramage and Maye Elizabeth Ramage Davis. I leave my little Pet Petite to my friend Waneeta Corzine phone 832-3001 no answer ring 832-1666. I want three hundred dollars taken out of my savings account at Commercial bank for Petites upkeep.
I want the house sold and money to pay any outstanding debts and for the upkeep of Antiques for Museum. I want my kitchen stove, frigidaire and everything in kitchen for Samantha Washington my maid. I want my XL 100 television to go to Elnora Edwards my maid. I want all my jewelry a fifteen hundred dollar diamond ring all my jewelry and furs to Ethel Gandy my cousin and clothes Montgomery Alabama. Address 3393 Lebron St. Zip 36106.
Any money on savings pay my monthly bills.
Signed and Witnessed by
(Signed) Nell Phillips
(Signed) Smantha Washington
Witness Nell Phillips, an antique dealer, testified as to her business dealings and many personal visits with the testatrix; that on December 18, 1973 the testatrix produced the will and asked Mrs. Phillips to witness it; and that she recognized the handwriting as that of the testatrix. Another antique dealer, Jack Cunningham, testified he saw the testatrix frequently; that he could identify the instrument as having been written in her handwriting; and that he discussed with testatrix the desirability of her leaving her valuable collection of antiques to the museum. Cora Cook Thomas testified she and the testatrix had been good friends since high school days; that she could identify the will as being in testatrix's handwriting; that testatrix had discussed with the witness the subject of a will and she told testatrix to have two witnesses. Catheline Cunningham, another friend of many years standing, testified she was aware that testatrix intended to leave her antiques to the museum; and that the will was entirely in the handwriting of Maye Elizabeth Ramage Davis. Appellant Gayle Ramage Nelson, niece and close neighbor of testatrix, testified that she had not been in the latter's home for several years, conceding that she and testatrix were not very close, in fact indicated there was some feeling of animosity.
Elnora Edwards, who is mentioned in the will, cooked breakfast for the testatrix during the last eighteen months of the latter's life; she said she was made aware that she would be remembered in the will; and that on the morning of December 20, testatrix said she had made her will and it was on top of the piano along with a list of pallbearers. Samantha Washington said she had worked for Mrs. Davis for some fifteen years. She said she witnessed the will on December 18; that Mrs. Phillips came in and witnessed it; and that testatrix told Ms. Washington to put the will on top of the piano.
Under the provisions of our probate code of 1949, the signature of a testator need not be written at the end of the will. "Where the entire body of the will and the signature thereto shall be written in the proper handwriting of the testator, such will may be established by the evidence of at least three credible disinterested witnesses to the handwriting and signature of the testator, notwithstanding there may be no attesting witnesses to such will." Ark.Stat.Ann. § 60-404 (Repl.1971). Smith v. MacDonald, 252 Ark. 931, 481 S.W.2d 741 (1972).
If the testator's name is written in or upon some part of the will other than at the end thereof, to be a valid signature it must be shown that the testator wrote his name where he did with the intention of authenticating or executing the instrument as his will. 2 Bowd-Parker: Page on Wills, § 20.9; Estate of Kinney, 16 Cal. 2d 50, 104 P.2d 782 (1940). Thus our problem is to determine whether the name Maye Elizabeth Ramage Davis was placed in the body of the will with the intent that *884 it constitute a signature in addition to the intention of creating a memorial. In the second paragraph of the will we find the only mention of testatrix's name: "And I am leaving all my antiques ... in memory of my mother and father, W. R. Ramage and brother Robert Ramage and Maye Elizabeth Ramage Davis."
Appellees rely heavily on our case of Smith v. MacDonald, supra. But the facts in that case are far different from the facts in the case at bar. The first line in that will describes the instrument as the "Will of Julian Leland Rutherford." The first paragraph recites: "I, Julian Leland Rutherford ... do hereby make, publish and declare this to be my last will and testament." The last line of the instrument then recites: "Witness my hand and seal this 11 day of July, 1970."
We have abstracted at some length the testimony of the witnesses. The most that evidence shows is that the instrument was in the handwriting of the testatrix and that she considered it as her will. It would be sheer speculation to assume that those circumstances indicated that she intended her name in the body of the will to be her signature thereto.
Cited at length by appellees is the California case of In re Bloch's Estate, 39 Cal. 2d 570, 248 P.2d 21 (1952). In that case the single location of the name of the deceased was in the body of the will; in disposing of some bonds the testatrix there referred to "Bonds belonging solely to Helene I. Bloch." The court held that reference to constitute a signature. We discussed Bloch in our case of Smith v. MacDonald. We did not adopt the decision but merely referred to it as a "very interesting case". In fact we quoted with apparent approval from the dissenting opinion in that case of Justice Traynor:
Regardless of where the name may appear in the instrument, there is always the possibility, of course, that it was intended as a signature. The mere existence of that possibility, however, is not enough to permit a reasonable inference that it was so intended. When the name is used to identify the decedent as the author of the alleged will as in Estate of Kinney, 16 Cal. 2d 50, 104 P.2d 782 ("I Anna Leona Graves Kinney, do bequeath all my possessions to my four sisters") or to identify the instrument as decedent's will as in Estate of Brooks, 214 Cal. 138, 4 P.2d 148 ("This is my will Elizabeth Ryan Brooks"), and in addition the instrument appears to be a complete testamentary document, it may reasonably be inferred that the name was placed where it was with the intention of executing the instrument. In such cases the name is linked to the alleged testamentary act and the probabilities that it was intended as a signature are strong. In the present case, on the contrary, decedent's name appears only in the description of her property.
The legislature had a sound basis for requiring that a holographic will be signed by the testator, because that signature is the best and most reliable indication that the signer means for the instrument to be his will. We think, and so hold, that to adopt the majority rule in Bloch would amount to writing the word "signature" out of the statute.
Reversed and remanded.
FOGLEMAN, J., dissents.
FOGLEMAN, Justice (dissenting).
The majority opinion seems to be hinged, at least in part, upon Justice Traynor's dissent in In re Bloch's Estate, 39 Cal. 2d 570, 248 P.2d 21 (1952). I respectfully submit that we did not cite this dissent with approval in Smith v. MacDonald, 252 Ark. 931, 481 S.W.2d 741. We commented that Bloch was an interesting case, and that the dissenting opinion was of value in pointing out distinctions. We were discussing the California rule as set out in In re Manchester's Estate, 174 Cal. 417, 163 P. 358 (1917), which we had been *885 urged to adopt by the unsuccessful appellant. The Manchester rule was quoted as follows:
The true rule, as we conceive it to be, is that, wherever placed, the fact that it was intended as an executing signature must satisfactorily appear on the face of the document itself. If it is at the end of the document, the universal custom of mankind forces the conclusion that it was appended as an execution, if nothing to the contrary appears. If placed elsewhere, it is for the court to say, from an inspection of the whole document, its language as well as its form, and the relative position of its parts, whether or not there is a positive and satisfactory inference from the document itself that the signature was so placed with the intent that it should there serve as a token of execution. If such inference thus appears, the execution may be considered as proven by such signature. [Emphasis mine]
From the discussion of these cases in the opinion in Smith v. MacDonald, supra, it is clear that California does not permit extrinsic evidence to show surrounding circumstances as an aid to the court in determining whether a testator who wrote his name in the body of a will intended to do so as a signature.
The concluding language in Smith v. MacDonald, supra, clearly shows that we did not adopt either the majority or dissenting opinion in Bloch and that we rejected in toto the California rule we were being urged to adopt. That language is:
Even if we should adopt and strictly apply the California rule announced in Manchester as urged by the appellants, the instrument signed by Rutherford would qualify as a holographic will subject to probate under the subsequent decisions of the California courts. But in this case Mr. Rutherford delivered the sealed envelope to his attorney and told him that it contained his will. All other evidence clearly indicates that when Mr. Rutherford delivered the instrument to his attorney, he had fully carried out his announced intentions of disposing of his property by will to the exclusion of the appellants. [Emphasis mine]
In Page on Wills, vol. 2, § 20.9, p. 294, is found the following:
"There is a conflict of authority concerning the admissibility of evidence of testator's declarations and acts, together with surrounding circumstances, to determine whether his name which was written by him in the body of the will was intended as a signature. The weight of authority permits introduction of such evidence for the purpose of determining the intention with which testator wrote his name."
We conclude, therefore, that the trial court did not err in admitting the instrument to probate as the last will and testament of Julian Leland Rutherford, and that the judgment of the probate court should be affirmed.
This clearly put us in accord with the weight of authority, but it seems to me that the majority is now willing to adopt the California rule. I concede that under the California rule the Davis will should not have been admitted to probate, even though the Bloch majority would have required that it be. I submit also that the Bloch will would have been subject to probate if extrinsic evidence such as that presented here had been admitted. I would not recede from the rule obviously adopted by us in the rather recent case above cited and would examine this instrument in the light of the prevailing circumstances.
First, we must consider the findings and conclusions of the probate court. Those significant are:
The Decedent left as her Last Will a written instrument dated the 18th day of December, 1973. The entire body of the Will and the signature thereto was in the proper handwriting of the Testatrix, *886 and this was established by the testimony of four (4) credible disinterested witnesses to the handwriting and signature of the Testatrix and other evidence before the Court.
* * * * * *
(1) That the said handwritten instrument dated December 18, 1973, described above and heretofore filed herein be admitted to probate as the holographic Will of the Decedent, Maye Elizabeth Ramage Davis;
(2) That the said holographic Will of the Decedent was executed in all respects according to law when the Decedent was competent to do so and acting without undue influence, fraud or restraint;
Unless appellees failed to meet their burden of proof or these findings are clearly against the preponderance of the evidence, we should affirm the judgment. What then were the surrounding circumstances shown by the extrinsic evidence?
The entire instrument was written in the handwriting of Mrs. Davis. Its entire content is testamentary in nature. It is a complete testamentary document. It contains at the end the words "Signed and witnessed by", not the words "signed by and witnessed by". The testamentary provisions are all in the first person. Mrs. Davis was the only surviving child of the person named by her in the instrument as her father. Her brother was Robert Ramage and he was named by her as such in the document. She had a dog named Petite. She had a friend named Waneeta Corzine, an employee of a veterinarian, and this friend frequently bathed and brushed the dog for her. She had indicated her total dependence upon Ms. Corzine for this care of the pet. Under this instrument this friend would not only get the dog, but a fund for the maintenance of this pet. Mrs. Davis recorded in the written instrument the telephone numbers by which Ms. Corzine could be reached. When she was lonely, she called this friend to talk about dogs.
Mrs. Davis was very interested and knowledgeable about antiques and would not dispose of any she owned unless she had run out of money. On the day the instrument was dated, she told Nell Phillips that she had made her will and asked Mrs. Phillips to sign it as a witness. She related to Mrs. Phillips that she was ill and her state of health was getting worse and that she wanted to make the will before she died or went to the hospital. Mrs. Phillips, an antique dealer, had previously suggested that Mrs. Davis leave her property to the Texarkana Museum. Approximately three weeks prior to the date of the instrument, Mrs. Davis, by telephone, discussed making a will with Jack Cunningham, another antique dealer. He also suggested that she leave her property to the Texarkana Museum, rather than her church.
Cora Cook Thomas, a lawyer's daughter and longtime friend, had written her own will and had advised Mrs. Davis that it was in longhand. She also told Mrs. Davis what she should say in a will and to have two witnesses. On December 20, when Leola (Elnora) Edwards came to prepare breakfast, Mrs. Davis said she had made out her will and Mrs. Phillips and Samantha Washington, another servant, had signed it. Both of these servants were legatees under the will. This instrument, a list of pallbearers, and a statement about the writing of an obituary were kept together in the place where Mrs. Davis specifically directed that the testamentary document be placed and left.
Mrs. Davis was estranged from appellants, her only heirs at law, and had specifically stated that she did not want to leave her property to them because they had not done anything for her. The admitted facts show there was considerable justification for this feeling. This was not an unnatural will, but a very natural one.
Evidence of surrounding circumstances will inevitably be circumstantial as to the *887 ultimate facts in a case such as this. The testimony about the circumstances in this case are undisputed. They lead to the logical inference that Mrs. Davis did treat her name in the body of the instrument as her signature to her will. If she had not so intended, it is highly unlikely that she would have written her full name instead of using the simple pronoun "me" or the word "myself". Under all the circumstances, it seems to me that the trial court drew the only logical inference.
I would affirm the judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556603/ | 30 So. 3d 760 (2009)
Joe A. WILLIAMS
v.
TEMPLE INLAND, INC.
No. 2008 CA 2153.
Court of Appeal of Louisiana, First Circuit.
December 23, 2009.
*761 Delbert G. Talley, Covington, Louisiana, for Plaintiff/Appellant Joe A. Williams.
Deanne B. McCauley, Covington, Louisiana, for Defendant/Appellee Temple Inland, Inc.
Before DOWNING, GAIDRY, and McCLENDON, JJ.
GAIDRY, J.
An employee appeals the judgment of the Office of Workers' Compensation, dismissing his claim for workers' compensation for an occupational disease. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The claimant, Joe A. Williams, was a longtime employee at the Bogalusa paper mill operated by Temple Inland, Inc., his employer, and its predecessors.[1] Mr. Williams first began working at the paper mill in October 1969, and worked there in various positions until March 2005. He officially retired in October 2005.
On April 19, 2006, Mr. Williams filed a Disputed Claim for Compensation, claiming that he has sustained "respiratory problems" from chemical exposure and that those problems had constantly gotten worse over time until he was eventually hospitalized in March 2005. Mr. Williams's pulmonary condition has over the years been consistently diagnosed as asthma, with possible elements of chronic obstructive pulmonary disease and reactive airways disease syndrome, or RADS.
This matter was tried before the workers' compensation judge (WCJ) on March 19, 2008. At the conclusion of the trial, the WCJ took the matter under advisement for decision. Following submission of detailed post-trial memoranda, the WCJ issued written reasons for judgment and signed a judgment on June 25, 2008, dismissing Mr. Williams's claim. A copy of the WCJ's Written Reasons, detailing the evidence and testimony presented at trial, is attached to this opinion as an addendum.
Mr. Williams now appeals.
ASSIGNMENTS OF ERROR
Mr. Williams has listed eight separate assignments of error, but all essentially relate to the WCJ's factual findings and the weight of the evidence upon which she based her decision that he failed to meet his burden of proof that he contracted an occupational disease that arose out of and in the course and scope of his employment. Thus, the central issue presented for our determination is whether the WCJ was clearly wrong in concluding that Mr. Williams failed to meet that burden of proof by a preponderance of the evidence.
ANALYSIS
In a workers' compensation case, as in other civil cases, the appellate court's review of factual findings is governed by the manifest error or clearly wrong standard. Pertuis v. Architectural Fabrications, Inc., 01-2684, p. 6 (La.App. 1st Cir.12/20/02), 836 So. 2d 450, 453, writ denied, 03-0231 (La.4/4/03), 840 So. 2d 1216. The two-part test for the appellate review of a factual finding is: (1) whether there is a reasonable factual basis in the record for the finding of the trial court, and (2) whether the record further establishes *762 that the finding is not manifestly erroneous. Mart v. Hill, 505 So. 2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the WCJ's finding, no additional inquiry is necessary. However, if a reasonable factual basis exists, an appellate court may set aside a WCJ's factual finding only if, after reviewing the record in its entirety, it determines the WCJ's finding was clearly wrong. Dressel v. Topeka Transfer & Storage, 02-0779, pp. 4-5 (La.App. 1st Cir.3/28/03), 844 So. 2d 288, 291. If the findings are reasonable in light of the record reviewed in its entirety, this court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell v. ESCO, 549 So. 2d 840, 844 (La.1989). Thus, where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State ex rel. Dep't of Transp. & Dev., 617 So. 2d 880, 883 (La.1993).
The trial court's finding regarding causation is a factual finding and must be reviewed under the manifest error standard. Robling v. Allstate Ins. Co., 97-0582, p. 4 (La.App. 1st Cir.4/8/98), 711 So. 2d 780, 783. Mr. Williams correctly emphasizes that Louisiana courts should interpret workers' compensation laws liberally in order to afford coverage. See Coats v. Am. Tel. & Tel. Co., 95-2670, p. 4 (La.10/25/96), 681 So. 2d 1243, 1245. However, despite such liberal construction, the claimant's burden of proof as to causation is not relaxed and must be shown by a preponderance of the evidence. Id.
Every employee who is disabled because of the contraction of an occupational disease is entitled to receive workers' compensation benefits. La. R.S. 23:1031.1(A); Seal v. Gaylord Container Corp., 97-0688, p. 5 (La.12/02/97), 704 So. 2d 1161, 1164. An occupational disease is defined as "only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease." La. R.S. 23:1031.1(B). The causal link between the employee's illness and work-related duties must be established by a reasonable probability. Seal, 97-0688 at p. 6, 704 So.2d at 1165.
Mr. Williams's physicians' opinions on the relationship of his complaints to his employment were based largely on the history provided by Mr. Williams. In her detailed written reasons for judgment, the WCJ took notice of the admissions of several of Mr. Williams' treating physicians that they were unaware of the significant fact that he resided on a tree farm for many years, as well as information relating to his history and treatment by other physicians. She further expressly noted a number of inconsistencies in Mr. Williams's testimony and the evidence relating to his medical history, onset of symptoms, and treatment. Of particular significance were the prior history and description of symptoms, provided by Mr. Williams to Dr. Merlin Wilson and Dr. Lee Roy Joyner (two of his treating physicians), that his symptoms did not improve when he was away from the environment of the mill. The medical evidence and testimony uniformly suggest that such a circumstance would be inconsistent with occupational asthma, as such improvement by history is the most important diagnostic criterion for occupational asthma.
The rule that questions of credibility are for the trier of fact applies also to the evaluation of expert testimony. Lirette v. State Farm Ins. Co., 563 So. 2d 850, 853 (La.1990). A trial court may accept or reject in whole or in part the opinion expressed by an expert. The effect and weight to be given expert testimony is within the broad discretion of the trial *763 judge. Rao v. Rao, 05-0059, p. 14 (La. App. 1st Cir.11/4/05), 927 So. 2d 356, 365, writ denied, 05-2453 (La.3/24/06), 925 So. 2d 1232. It is the function of the WCJ to assess the weight to be accorded both the lay and the medical testimony, and the court may accept or reject the opinion of a medical expert depending upon what impression the qualifications, credibility, and testimony of that expert make on the court. Ivy v. V's Holding Co., 02-1927, p. 7 (La.App. 1st Cir.7/2/03), 859 So. 2d 22, 28.
Medical testimony, albeit significant, is not conclusive as to the issue of causation, which is generally the ultimate fact to be decided by the court after weighing all the evidence. Peveto v. WHC Contractors, 93-1402 (La.1/14/94), 630 So. 2d 689, 691. Medical testimony must be weighed in the light of other credible evidence of a non-medical character, such as a sequence of symptoms or events in order to judicially determine probability. Schouest v. J. Ray McDermott & Co., Inc., 411 So. 2d 1042, 1044-45 (La.1982). The credibility of the plaintiff is especially significant when a physician must relate a medical condition to an accident when it is the plaintiff who provides a physician with a history of his symptoms. Mart v. Hill, 496 So. 2d 1149, 1152 (La.App. 4th Cir. 1986), reversed on other grounds, 505 So. 2d 1120 (La.1987). Similarly, a claimant's lack of credibility on factual issues can serve to diminish the veracity of his complaints to a physician. Bass v. Allstate Ins. Co., 32,652, p. 13 (La.App. 2nd Cir.1/26/00), 750 So. 2d 460, 467. Thus, in many cases the credibility of the history given by the claimant to his physicians becomes as important as the medical opinions based in part on that history. See Cheatum v. Wackenhut Corp. 346 So. 2d 888, 890 (La.App. 4th Cir.1977).
Both parties have fully and cogently set forth the opposing evidence before the WCJ and those factors favoring their positions. The trial evidence, taken in toto, admits of two opposing views on the issue of causation. As the WCJ's finding on the issue of causation was based upon her determination of witness credibility, it is entitled to great deference. See Rosell, 549 So.2d at 844. Although we may have reached a different result if we were determining this issue as trier of fact, we cannot find that the WCJ's determination regarding this issue was manifestly erroneous.[2]See Stobart, 617 So.2d at 882. Accordingly, we must affirm the judgment of the WCJ.
DECREE
The judgment of the Office of Workers' Compensation, dismissing the claim of the claimant, Joe A. Williams, is affirmed. All costs of this appeal are assessed to the claimant.
AFFIRMED.
*764 ADDENDUM
JOE A. WILLIAMS DOCKET 06-02462 DISTRICT 6
VS. OFFICE OF WORKERS' COMPENSATION
TEMPLE INLAND CORP. STATE OF LOUISIANA
WRITTEN REASONS
Joe A. Williams filed a disputed claim for compensation against Temple Inland Corp. ("the mill") on April 19, 2006. Mr. Williams alleged an injury to his lungs in March 2005. Specifically, he alleged "respiratory problems constantly got worse until hospitalization in March, 2005, due to chemical exposure."
Mr. Williams testified that he began working at the mill in January 1970. He testified that he worked around chemicals and in dusty areas. He testified that over the years, he was exposed to chlorine, sawdust, sulfur dioxide, moldy bark, hot oils, creosote, sulfuric acid, burned plastic, burned marijuana, black liquor, green liquor, white liquor, and ash.
Mr. Williams testified that his asthma started in 1998. He saw Dr. Bernard Brach in 1998 and 1999, with complaints of shortness of breath. Dr. Brach started him on inhalers and placed him on steroids. He testified that he stopped seeing Dr. Brach because his insurance changed.
Mr. Williams testified that he saw Dr. Steele Rolston, an allergist, but he eventually stopped seeing Dr. Rolston. He testified that he saw Dr. Craig Parker, who "shot him up with steroids."
*765 Mr. Williams testified that as a supervisor at the mill, he had posted safety materials in the past, but claimed he never saw a notice about filing a claim within a year of contracting an occupational disease.
On cross-examination, Mr. Williams testified that he started smoking in high school and quit in 1983 or 1984, after about 16 years of smoking. He testified that he smoked a couple of packs a day. He testified that he has worked on a tree farm his entire life. He testified that he now has mostly pine trees. He testified that the mold count from the pine trees has never been tested.
Still on cross-examination, Mr. Williams was asked about the thirty work injuries he reported previously when the mill was owned by Crown Zellerbach. He did not dispute the claims, but testified that he did not remember them all. He testified that he worked in the control room in a controlled environment from 2000 to 2005.
Mr. Williams confirmed that when he saw Dr. Merlin Wilson, he told Dr. Wilson that he had sprayed Jaytox under his house and gas had built up. He also confirmed that he told Dr. Wilson that he used insecticides on his farm. Mr. Williams testified that he saw Dr. Lee Roy Joyner on his own for a second opinion, and that he told Dr. Joyner about his exposure to Jaytox.
Mr. Williams testified on cross-examination that he did not remember going to the mill to meet with Ms. Galloway about his disability pension. He testified that he did not tell Ms. Galloway about any problems he had when he was at the mill in August 2005.
*766 Rhonda Galloway testified on behalf of the mill. She is the benefits coordinator for the mill. She testified that she met with Mr. Williams in March 2005 to discuss short term disability. She met with him again in August 2005 to discuss disability retirement. She testified that Mr. Williams has been on disability retirement since October 2005.
Ms. Galloway testified that an employee must be out of work for six months before applying for disability retirement, and that the company pays 100% of the short term disability premium. She testified that an employee cannot receive short term disability if the injury or illness is work-related. She testified that occupational injury or illness claims are referred to occupational health, i.e. to Cindy Lee or Bill Bragg. She testified that through October 2005, Mr. Williams never mentioned that his condition was work-related.
Ms. Galloway confirmed Mr. Williams' testimony that he never mentioned any distress when he came to see her at the mill.
William Bragg testified on behalf of the mill. He is the safety manager at the mill. Mr. Bragg testified that the company's workers' compensation reporting policy is posted in two locations at the mill: at Cindy Lee's nursing station and at the time station where employees punch their time cards. Mr. Bragg testified that as of March 2005, Mr. Williams had not mentioned his condition was work-related. He testified that Mr. Williams eventually reported it as a workers' compensation claim in 2006 through Cindy Lee.
*767 Mr. Bragg testified that he instituted air sampling around Mr. Williams' work area in 2006 after Mr. Williams' claim. He testified that an industrial hygienist did an investigation in the control room and other areas. He testified that no contaminants were found in excess, and everything was "OK" with OSHA.
Mr. Bragg testified that there were no chlorine based operations at the mill since 1975, and that there was no sulfur dioxide at the mill. He testified that the ash at the mill is wet when it is hauled, and that Mr. Williams would not have been around ash while working in the control room.
Numerous medical experts testified by deposition. Dr. Bernard Brach testified that he is board certified in pulmonology. He testified that he first saw Mr. Williams in 1998. He testified that he saw Mr. Williams on February 29, 2000 with complaints of shortness of breath. He testified that he had not diagnosed Mr. Williams with asthma at that point because testing was still ongoing.
Dr. Brach testified that his next clinic note was dated March 28, 2000. He testified about his notes from that visit:
". . . Again, we're eliminating diagnoses here as we go. And, then, there's a simple note at the top. It has, "Multiple exposures at work" and, then, that he sprayed under his house for some kind of fungus. I noted, "Sprayed, and he didn't use a mask." And then I noted that as part of his lifestyle he tended to burn underbrush in his area. I guess that was on his he lived on a farm, on his farm . . ."
Dr. Brach testified that he saw Mr. Williams on May 26, 2000 and for the first time he noted "occupational exposures is (sic) at issue." Dr. Brach testified that although Mr. Williams' next visit was scheduled for the fall, Mr. Williams did not *768 return to see him until over a year later on July 2, 2001. Dr. Brach testified that on that date, Mr. Williams' pulmonary function test showed that his lung power was 43 percent of normal. Dr. Brach testified that on that visit, he was still concerned about Mr. Williams' working and living environment. He testified that he referred Mr. Williams to Dr. Merlin Wilson, an allergist, because Dr. Brach thought his condition was probably work-related and that he wanted to make sure he was not missing something like an allergy.
Dr. Brach testified that after his referral to Dr. Wilson, Dr. Wilson suggested a possible toxic inhalation rather than allergic. He testified that he called and spoke with Dr. Wilson because he wanted to make sure of what he was saying. He testified that Dr. Wilson noted in his report that there was an exposure not only at home, but also at work of various chemicals, and that some of this exposure was chlorinebased products.
Dr. Brach testified that he saw Mr. Williams again in June of 2002. He testified that he noted in his chart "Still working in questionable environment", and that he was seen by Dr. Wilson. He also noted in the chart "Still going in the woods." He testified that at that point, he diagnosed Mr. Williams with Reactive Airway Disease ("RAD") and purulent bronchitis.
Dr. Brach was asked about any recommendations he made to Mr. Williams regarding any restrictions in his ability to work, and Dr. Brach testified that he remembered ongoing discussions with Mr. Williams about whether he should be *769 doing what he was doing, and he thought Mr. Williams' response was that he needed his job.
Dr. Brach testified that he saw Mr. Williams on November 19, 2002. Dr. Brach testified that he was writing in his chart notes "environment, environment, environment. I'm saying to him, look, it's the environment you're in." Dr. Brach was then asked about options that he provided to Mr. Williams, and he responded: "Well, I mean at this point you say, look, can you change things in your life? You know, and we'll go back to the three things that, you know, were noted several visits before, at work, you know, quit burning brushout in the field, quit spraying things like that . . ."
Dr. Brach testified that Mr. Williams cancelled his February 2003 appointment and returned on April 9, 2003. He testified that he had sent Mr. Williams to East Jefferson General Hospital for some lab work on March 5, 2003, and it was all coming back negative. He testified that he gave Mr. Williams a peak flow meter to monitor his airway response to his environment at home and at work. He testified that Mr. Williams returned on May 9, 2003, but did not bring any peak flow measurements.
Dr. Brach testified that he saw Mr. Williams on November 13, 2003. He testified that in his chart he noted that Mr. Williams went to Germany and did well all summer.
*770 Dr. Brach testified that he last saw Mr. Williams in June 2004. He testified that at that time, he put Mr. Williams on Xolair and Spiriva, and wrote "Needs to return in September with a spirometry."
Dr. Brach was asked if in his opinion, he could say more probably than not that Mr. Williams' RAD was related to something in his work environment at the mill, and he responded "I think it is."
Dr. Merlin Wilson is board certified in internal medicine, allergy and immunology, and rheumatology. He testified that he saw Mr. Williams on July 26, 2001 on a referral from Dr. Brach. He testified that Mr. Williams reported spraying Jaytox, a chlorine-based product, on mold under his houseand he became short of breath within a few days. Dr. Wilson testified that Mr. Williams also reported exposure to burning bark at the Gaylord plant in Bogalusa. Dr. Wilson stated: ". . . He when you're thinking about occupational asthma, you usually ask the question: Do you get worse at work? He does not get worse when he is at work."
Dr. Wilson testified that Mr. Williams was a farmer and he used various chemicals on his farm, such as insecticides. Dr. Wilson testified that he saw Mr. Williams for the specific purpose of determining whether he had hypersensitivity pneumonitis. He testified that he did skin testing on Mr. Williams for fungal precipitins, and the skin tests were negative.
Dr. Brice Steele Rolston is board certified in internal medicine and allergy, asthma, and immunology. Dr. Rolston testified that he saw Mr. Williams only one time on July 22, 2004 on a referral from Dr. Brach. Dr. Rolston testified that a skin *771 test was done which indicated Mr. Williams was minimally allergic to mold. Dr. Rolston testified that Mr. Williams had been approved for treatment with Xolair, and he received injections on four occasions and never returned.
Dr. Rolston testified that occupational asthma or allergic alveolitis is typically caused by repetitive exposure to proteins, usually in the form of mold. Dr. Rolston testified that he diagnosed Mr. Williams with perennial allergic rhinitis, gustatory rhinitis, and asthma. He prescribed Spiriva to see if it would control Mr. Williams' gustatory rhinitis.
Dr. Rolston testified that he knew Mr. Williams had a farm, but did not know it was a tree farm. He testified that trees generally pollinate three weeks out of the year, so pollen is not the issue, rather it is the mold that grows on trees constantly.
Dr. Rolston testified that Mr. Williams was skin tested for a standard screening battery of molds, and he tested positive for aspergillus, alternaria, hormodendrum, penicillium, and fusarium.
Dr. W. Brooks Emory is board certified in internal medicine, pulmonary medicine, and critical care medicine. Dr. Emory testified that he saw Mr. Williams on June 8, 2006. Dr. Emory testified that he was comfortable with the working diagnosis of asthma, but he could not come up with a causative agent for his asthma. He testified that he could not find anything in the workplace as being the source.
Dr. Emory testified that he reviewed outside air samples from the mill, and the only thing found in the sample was the normal component of air, which is 21.9 *772 percent oxygen. Dr. Emory testified that he did not think Mr. Williams had RAD, since he had no history of a single exposure which required hospitalization.
Dr. Emory was asked about Mr. Williams' exposure to Jaytox some four years prior to seeing Dr. Wilson, and whether that could have caused his asthma. Dr. Emory testified that he did not think so, that if it were chlorine-based, it would result in maybe an acute airway inflammation called chemical bronchitis.
Dr. Emory testified that in evaluating occupational asthma, one of the things doctors do is to see how the patient does out of the environment, then send them back in the environment and make peak flow measurements or spirometry measurements over time to see if the patient has an exacerbation. Dr. Emory testified that he did not think any of Mr. Williams' doctors had sent him back to the environment with measurement devices to see whether he had a fall in his flow rate.
Dr. Emory testified that based on his breathing capacity, he thought Mr. Williams could work, but not in an environment where he was exposed to fumes and dust and smoke.
Dr. Donald A. Kuebel is board certified in pulmonary medicine, internal medicine, and critical care medicine. Dr. Kuebel testified that he first saw Mr. Williams in March 2005 at Lakeview Regional Medical Center. He was brought in as a consult. Dr. Kuebel testified that in his experience treating Mr. Williams, he has definitely improved since he is away from the mill.
Dr. Kuebel testified that Mr. Williams' lung function in April 2005 was 70 percent. He testified that in August 2005, his lung function was down to 25 percent.
*773 Dr. Kuebel was asked if Mr. Williams was still improving with therapy and being off work, and he stated that he has chronic asthma, his asthma flares, and it comes and goes.
Dr. Brach testified that he had not reviewed Dr. Brach's records. He testified that he knew Mr. Williams was under the care of another pulmonologist, but that he was unaware of the frequency in which he had bronchitis or any other lung condition.
Dr. Kuebel testified that if appropriate employment from a pulmonary standpoint could be found, there is a possibility Mr. Williams could work. Dr. Kuebel testified that he was unaware that Mr. Williams lived on a tree farm. Dr. Kuebel testified that he suspects that Mr. Williams will never come off Predisone.
Dr. Kuebel testified that Mr. Williams pulmonary function study numbers were better on April 21, 2005 than on February 13, 2007. When asked how he would reconcile those numbers, with it being worse two years later and despite being out of his work environment, Dr. Kuebel stated that Mr. Williams has irreversible airways disease, and he is going to have good days and bad days.
Under La. R.S. 23:1031.1(A), every employee who is disabled because of the contraction of an occupational disease shall be entitled to the compensation provided in the Act the same as if the employee received personal injury by accident arising out of and in the course and scope of his employment.
Expert testimony of an objective quality, focusing on probabilities, in addition to claimant's testimony, is required to support a finding of an occupational disease. *774 The causal link between the claimant's occupational disease and the work-related duties must be established by a reasonable probability. The claimant will fail if there is only a possibility that the employment caused the occupational disease or if other causes not related to the employment are just as likely to have caused it. Dowell v. Ochsner Clinic of Baton Rouge, XXXX-XXXX (La. App. 1 Cir. 3/10/04), 874 So. 2d 852.
In the instant case, Mr. Williams' initial respiratory complaints occurred after the Jaytox episode when he was spraying the chlorine-based product on mold under his house. Also, Mr. Williams owns a tree farm, which could subject him to exposure to the mold which constantly grows on trees according to Dr. Rolston's testimony, and also to the chemicals in the form of insecticides which he reported to his doctors that he used on the farm.
Subjectively, Mr. Williams testified that his condition is improved since leaving the mill in March 2005. He called no witnesses to corroborate this. However, his testimony is contradicted by his current treating physician's testimony, as Dr. Kuebel testified that Mr. Williams' pulmonary function studies were worse in August 2005, some five months after leaving the mill, than his April 2005 studies.
Additionally, Dr. Brach recommended objective testing in the form of peak flow measurements to try to determine the cause of Mr. Williams' respiratory disease. He testified that he gave Mr. Williams a peak flow meter, but that Mr. Williams failed to bring him any peak flow measurements.
*775 For all these reasons, the court concludes that Mr. Williams has failed to prove by a preponderance of the evidence, or by a "reasonable probability", that he contracted respiratory problems which arose out of and in the course and scope of his employment. Therefore, his claim for workers' compensation shall be dismissed with prejudice, each party to bear their own costs.
DONE AND SIGNED this 25th day of June 2008 in Covington, Louisiana.
NOTES
[1] Two of the prior operators of the paper mill were Crown-Zellerbach Corporation and Gaylord Container Corporation.
[2] Because we affirm the judgment on the merits, it is unnecessary for us to address the issue of prescription raised by the defendant employer. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4204335/ | Order Michigan Supreme Court
Lansing, Michigan
September 15, 2017 Stephen J. Markman,
Chief Justice
Brian K. Zahra
Bridget M. McCormack
156221(59) David F. Viviano
Richard H. Bernstein
Joan L. Larsen
KHALANI CARR, Kurtis T. Wilder,
Plaintiff-Appellee, Justices
SC: 156221
v COA: 330115
Oakland CC: 13-134098-NI
ROGER A. REED, INC., d/b/a REED WAX,
AMOCO OIL COMPANY, a/k/a BP
PRODUCTS NORTH AMERICA, INC., and
THE INTERNATIONAL GROUP, INC.,
Defendants-Appellees,
and
KELLER HEARTT COMPANY, INC., and SASOL
WAX NORTH AMERICA CORPORATION, a/k/a
SASOL WAX NORTH AMERICA, INC., a/k/a
SASOL CHEMICALS USA, LLC,
Defendants-Appellants,
and
PROS SERVICE, INC.,
Defendant.
___________________________________________/
On order of the Chief Justice, the motion of plaintiff-appellee to extend the time
for filing his answer to the application for leave to appeal is GRANTED. The answer
submitted on September 11, 2017, is accepted for filing.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
September 15, 2017
Clerk | 01-03-2023 | 09-19-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/1537535/ | 142 B.R. 407 (1992)
In re Gary T. RUBOTTOM, June L. Rubottom, Debtors.
Bankruptcy No. 391-31383-H11.
United States Bankruptcy Court, D. Oregon.
June 23, 1992.
Tim Zimmerman, Portland, Or., for creditor.
David D. Park, Portland, Or., for debtor.
Robert W. Myers, Portland, Or., trustee.
OPINION
HENRY L. HESS, Jr., Chief Judge.
This matter came before the court on the debtor's objection to the allowance of the amended claim of Metropolitan Mortgage ("Metropolitan"). Metropolitan holds an oversecured claim in this case by virtue of a note secured only by security interest in the debtor's principal residence pursuant to a trust deed with an attorney fees clause.[1] The debtor's chapter 13 plan proposed to pay the note in full after its due date.
Metropolitan objected to confirmation of the proposed plan and filed a motion for *408 relief from stay. Both the objection to confirmation and the motion for relief were based on Metropolitan's contention that bankruptcy law did not allow the debtor to stay Metropolitan's foreclosure efforts beyond the maturity date of the note. See 11 U.S.C. § 1322(b)(2); In re Seidel, 752 F.2d 1382 (9th Cir.1985); In re Vanasen, 81 B.R. 59 (Bankr.D.Or.1987); and In re Rubottom, 134 B.R. 641 (9th Cir.BAP 1991).
Metropolitan's objections to confirmation were ultimately successful on appeal and the motion for relief was not pursued after the debtor converted the case to a chapter 11 case. Metropolitan amended its claim to include post petition attorney fees for litigating the objection and motion. Metropolitan also sought to add certain insurance premium advances and interest on the insurance premiums advanced.
The parties have agreed that the insurance premiums and interest thereon should not be allowed. Thus, the only remaining issue is the allowance of the attorney fees incurred by Metropolitan in objecting to confirmation and filing the motion for relief from stay.
Metropolitan contends that it is an oversecured creditor and that under 11 U.S.C. § 506(b), it is entitled to attorney fees as provided in the agreement.[2] Metropolitan apparently argues that its efforts in the bankruptcy court were taken to enforce the provisions of the subject contract, specifically, the provision concerning the maturity date of the note. Metropolitan contends that since it is oversecured and was enforcing the provisions of the contract, it is entitled to attorney fees pursuant to § 506(b) and the contract.
The debtor objects to the allowance of attorney fees on the ground Metropolitan is not entitled to post petition attorney fees for litigating "issues peculiar to federal bankruptcy law" under the rule announced in In re Fobian, 951 F.2d 1149, 1153 (9th Cir.1991). The debtor characterizes Metropolitan's efforts as ones peculiar to bankruptcy and therefore not compensable.
In Fobian, a chapter 12 debtor's plan proposed to pay a certain sum over time to a secured creditor in full satisfaction of the claim or to return the collateral in full satisfaction of the debt. The creditor in Fobian objected on the ground the debtor's plan failed to provide for its unsecured claim as required by § 1225(a)(4).[3] The bankruptcy court overruled the creditor's objection and confirmed the plan. The creditor appealed. The Bankruptcy Appellate Panel ("BAP") reversed the bankruptcy court's order of confirmation and the Ninth Circuit Court of Appeals affirmed the BAP's ruling.
After affirming the BAP's ruling in Fobian, the Ninth Circuit turned to the issue of attorney fees. In refusing to award fees to the successful creditor, the court stated that "where the litigated issues involve not basic contract enforcement questions, but issues peculiar to federal bankruptcy law, attorney's fees will not be awarded absent bad faith or harassment by the losing party." Id. at 1153.[4] The court cited In re Coast Trading Co., 744 F.2d 686 (9th Cir.1984) and In re Fulwiler, 624 F.2d 908 (9th Cir.1980) in support of its holding.
The final case cited by the Ninth Circuit in support of its holding is In re Johnson, 756 F.2d 738 (9th Cir.1985). The Fobian court summarizes Johnson as follows: "because creditor's request for relief from the automatic stay pursuant to Section 362(d) was not an `action on the contract,' debtor was not entitled to attorneys' fees for defense *409 against the request." Fobian at 1153.[5]
Metropolitan argues that Fobian dealt with attorney fees sought by an undersecured creditor. Since § 506(b) only applies to "oversecured" creditors, Metropolitan reasons that undersecured creditors are not allowed to recover fees regardless of the issues litigated. Thus, Metropolitan argues that the broad language about attorney fees in Fobian is dicta and not binding on this court.
While Metropolitan's analysis of the law is persuasive, its interpretation of Fobian is not. Although it appears the creditor in Fobian was undersecured, it also appears that such was not the basis for the court's ruling. Nowhere in the opinion does the court mention the language of § 506(b) nor the implication that undersecured creditors are not entitled to recover attorney fees under that section. If such were the basis for the ruling, surely this reasoning would have been made clear.
Instead, it appears the holdings of the Ninth Circuit have been fairly consistent from Fulwiler, Coast Trading and Johnson in the 1980's to Fobian in 1991: No creditor or debtor will be allowed attorney fees for litigating issues related to a contract if those issues are "peculiar to bankruptcy."[6]
It should be noted that there is merit in Metropolitan's contention and this court does not consider Metropolitan's argument to be frivolous. Outside of bankruptcy, if an agreement contains an attorney fee clause, a creditor (such as a vendor, mortgagee, trustee of a trust deed, payee, lessor, franchisor, etc.) can receive attorney fees as provided in the agreement without the need to find support in a statute. A prayer for attorney fees in an action or suit on the agreement is merely a request that the terms of the agreement be enforced. It is not necessary that the creditor rely upon O.R.S. 20.096 or any other statute.
O.R.S. 20.096 was not enacted to limit what the parties might define in their agreement as circumstances giving rise to recovery of attorney fees. Thus, if the agreement provided for attorney fees to obtain relief from stay in a bankruptcy case, O.R.S. 20.096 would not render such an agreement void.
On the other hand, the debtor (such as a vendee, mortgagor, grantor of a trust deed, payor, lessee, franchisee, etc.) in an action or suit brought by the creditor might not be entitled to recover attorney fees by relying on the provision for attorney fees in the agreement because its literal language might only apply for the benefit of the creditor. O.R.S. 20.096 was enacted to level the playing field so that if the agreement provides for attorney fees, such fees may be recovered by the prevailing party whether that party is the creditor or the debtor and in spite of the fact that the language of the attorney fees clause speaks only of the creditor.
In this case, since the express language of the attorney fee clause in the note and trust deed specifically applies for the benefit of Metropolitan and Metropolitan prevailed, O.R.S. 20.096 (and the phrase "action on a contract" contained therein) is not applicable. The only questions should be whether Metropolitan is oversecured under § 506(b) and whether the contractual language in this case is broad enough to include fees for actions taken in the bankruptcy court.
*410 There seems no dispute that Metropolitan is oversecured. The contract in question provides that the trustee is entitled to attorney fees "in connection with or in enforcing this obligation. . . ." This language is broad enough to include actions such as were taken in the bankruptcy court to enforce the provisions of the contract concerning the maturity date of the note.
Further support for Metropolitan's position may be found in Collier's on Bankruptcy. In discussing whether post petition interest, fees and costs will be allowed under § 506(b), Collier's writes:
In cases in which the holder of an allowed secured claim has been found to have collateral therefor in excess of the amounts of principal and prepetition interest [footnote 2 omitted] on such claim and any recovery under section 506(c) with respect thereto, the courts have in almost every instance allowed the holder as an additional part of its secured claim postpetition interest and reasonable fees, costs and charges as provided for under the applicable agreements [footnote 3 omitted here but discussed below.] Although the cases decided under the 1978 Code have also uniformly disallowed such interest, fees, costs and charges as secured claims when the value of the collateral is less than the amount of principal and prepetition interest [footnote 4 omitted], there is still substantial authority for the proposition that contractually-based unsecured claims for prepayment premiums and reasonable attorneys' fees may be allowed if such contractual rights are enforceable under applicable state law [footnote 5 omitted]. Collier's on Bankruptcy, 15th Ed. pp. XXX-XX-XX, ¶ 506.05.
In footnote 3 (mentioned above) Collier's cites 30 cases for the proposition that "the courts have in almost every instance" allowed postpetition attorney fees, costs or interest to oversecured creditors if the agreement so contemplates. The author then states in footnote 3:
"[I]solated cases have improperly carved-out exceptions from the application of 11 U.S.C. § 506(b). * * * Johnson v. Righetti (In re Johnson), 756 F.2d 738, 741 n. 3, 12 C.B.C.2d 573 (9th Cir.), cert. denied, 474 U.S. 828, 106 S. Ct. 88, 88 L. Ed. 2d 72 (1985)." [Some citations omitted.]
Thus, in addition to the logic of its argument, Metropolitan finds support in the most-recognized treatise on bankruptcy law.
This court, however, is bound by the holdings of the Ninth Circuit Court of Appeals. In Johnson, the court did not allow fees to the debtor for successfully defending the creditor's motion for relief from stay because a motion for relief from stay was not an "action on a contract." Thus, it appears that, even if the creditor in Johnson had prevailed, the court would not have allowed attorney fees. Johnson at 740.
In Fobian, the court was not concerned with the language of attorney fees clause in the contract or whether the creditor was oversecured under § 506(b). Instead, the creditor was not allowed attorney fees for successfully litigating an objection to confirmation because an objection to confirmation was not a "basic contract enforcement question." Fobian at 1153.
Since Metropolitan seeks fees for litigating the same issues (relief from stay and objections to confirmation), the result must be the same. Therefore, upon presentation by the debtor's counsel, the court will enter an appropriate order sustaining the debtor's objections to Metropolitan's claim and allowing the claim subject to the limitations discussed herein.
NOTES
[1] The trust deed provides in paragraph 6 that the grantor agrees: "To pay all costs, fees and expenses of this trust including the costs of title search as well as the other costs and expenses of the trustee incurred in connection with or in enforcing this obligation and trustee's attorney's fees actually incurred."
[2] 11 U.S.C. § 506(b) provides:
"To the extent that an allowed secured claim is secured by property the value of which, after any recovery under subsection (c) of this section, is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement under which such claim arose."
[3] Section 1225(a)(4) provides:
"[T]he court shall confirm a plan if the value, as of the effective date of the plan, of property to be distributed under the plan on account of each allowed unsecured claim is not less than the amount that would be paid on such claim if the estate of the debtor were liquidated under chapter 7 of this title on such date. . . ."
[4] Neither of the parties seeks an award of fees on the grounds of bad faith or harassment.
[5] In Johnson, the court was interpreting a California statute that is very similar in language and, apparently, identical in effect, to O.R.S. 20.096. Both statutes, for example, use the phrase "action on a contract."
[6] The creditor cites Matter of 268 Limited 789 F.2d 674 (9th Cir.1986) to illustrate that the Ninth Circuit Court of Appeals recognizes an oversecured creditor's right to attorney fees (as provided in a contract) for litigating bankruptcy issues. The debtor points out, however, that in 268 Limited the primary issue was the reasonableness of the fee and not the creditor's right to fees. In 268 Limited, the court does not mention In re Coast Trading and In re Fulwiler, both of which preceded 268 Limited and both of which dealt with the issue at hand.
Moreover, to the extent 268 Limited stands for the proposition that fees may be allowed to oversecured creditors under § 506(b), it seems to have been implicitly overruled by the more-recent and more-pointed opinion in Fobian. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1554036/ | 26 So.3d 342 (2010)
Vicki D. WHITE
v.
John R. WHITE.
No. 2008-CA-01246-SCT.
Supreme Court of Mississippi.
January 28, 2010.
*345 Adam A. Pittman, Helen Bagwell Kelly, Batesville, attorneys for appellant.
Gregory D. Keenum, attorney for appellee.
Before GRAVES, P.J., DICKINSON and CHANDLER, JJ.
DICKINSON, Justice, for the Court.
¶ 1. Finding that the chancery court properly had jurisdiction of this matter, applied the proper legal standard, and committed no manifest error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 2. The complicated procedural history of this case is as follows: John R. White ("Rusty") and Vicki D. White ("Vicki") were divorced on January 16, 1998. Rusty and Vicki agreed that they would share joint legal custody of John Andrew ("Andrew"), born September 28, 1988; Kimberly Elizabeth ("Kim"), born July 23, 1990; and Alexander Reed ("Alex"), born December 5, 1994; and that Vicki would have physical custody of the children. Vicki moved with the three children to Benbrook, Texas, in January 1999. In 2001, without either party consulting the chancery court, the parties' oldest child, Andrew, moved back to Mississippi to live with Rusty.
¶ 3. On May 1, 2003, Rusty filed a Petition to Modify the Divorce Decree seeking custody of the children because Vicki had moved with the children to Texas, and because Andrew had been living with him for two years before the petition was filed. No process was had nor action taken on this petition. The parties' youngest son, Alex, remained with Vicki in Texas from the time she moved in 1999 until a period of extended visitation with Rusty began in June 2006.
¶ 4. On July 20, 2006, Judge Jacqueline Mask signed an order appointing Lisa Koon guardian ad litem and entered an order granting emergency custody of the three children to Rusty. The order referenced a motion to modify the original decree and a request for an emergency order on file, but these motions were not in the case file, nor does the record include any proof that the order was served on Vicki.
¶ 5. On July 26, 2006, the three chancellors of the First Chancery Court District recused and Kenneth Burns was appointed as special chancellor in this case.[1] On September 25, 2006, Rusty filed a Petition for Modification of Final Decree seeking custody of the children and related relief, but no process was had on this petition.
¶ 6. In October 2006, Rusty and Vicki agreed that Alex would visit Vicki in a hotel room in Corinth, Miss. Without informing Rusty, Vicki took Alex back to Texas in the middle of the night, and refused to take calls on her cell phone from Rusty or the guardian ad litem. On October 16, upon petition from Rusty, the Chancery Court found Vicki to be in willful contempt of the court's order, granted emergency custody to Rusty, and ordered the immediate return of Alex to Rusty, but no process was ever served on Vicki.
¶ 7. Vicki made her first appearance in this proceeding on November 21, 2006, when she filed her Motion to Dissolve Order Granting Emergency Custody. The emergency temporary order was set aside on December 15, 2006, and the terms of the original divorce decree were reinstated. On the same day, Rusty filed a motion for a Rule 65 hearing. See Miss. R. Civ. P. 65. Vicki filed her response, along with a *346 motion to dismiss based on lack of jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and forum non conveniens. See Miss.Code Ann. §§ 93-27-101 to XX-XX-XXX (Rev.2004).
¶ 8. On January 22, 2007, Vicki filed a custody action in Texas state court. On January 27, 2007, the Chancery Court of Tishomingo County entered an order for a home study of Vicki to be performed through the Tishomingo County Department of Human Services and the State of Texas.
¶ 9. The Court issued its opinion on May 27, 2008, awarding Rusty custody of Alex. The chancellor found the following to constitute a material change in circumstances adversely affecting Alex: (1) Vicki's violation of the July Order when she took Alex back to Texas in the middle of the night in October of 2006; (2) Alex's excessive absences from school; (3) Vicki's lack of cooperation with the guardian ad litem; (4) Vicki's lack of ability to discipline Alex; and (5) Vicki's allowing Kim and her boyfriend to share a bedroom while she had Alex in her custody. The chancellor performed an Albright analysis, and concluded that the best interests of Alex would be served by Rusty having primary physical custody of Alex with Vicki having reasonable visitation rights. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). Vicki now appeals the chancellor's decision, and raises the following issues.
ISSUES
I. Whether the chancery court erred in determining custody of Alex because the court lacked jurisdiction over his custody determination.
II. Whether the court erred in awarding custody of Alex to Rusty.
ANALYSIS
¶ 10. "This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." R.K. v. J.K., 946 So.2d 764, 772 (Miss.2007) (citations omitted). However, whether the chancery court has jurisdiction to hear a particular matter is a question of law which this Court reviews de novo. In re Guardianship of Z.J., 804 So.2d 1009, 1011 (Miss.2002) (citing Burch v. Land Partners, L.P., 784 So.2d 925, 927 (Miss.2001)).
I. Jurisdiction
¶ 11. Vicki raises several arguments that the Chancery Court of Tishomingo County lacked jurisdiction to hear the case: that (1) Rusty failed to make disclosures required by the UCCJEA; (2) the chancellor erred by failing to consider Mississippi Code Section 93-27-202(a) (Rev. 2004); (3) the chancellor should have transferred the proceedings to Texas on the basis of forum non conveniens; and (4) the chancery court should have declined to exercise jurisdiction because Rusty has engaged in unjustifiable conduct. We find that the chancery court properly exercised jurisdiction over this case.
A. UCCJEA Disclosures
¶ 12. Vicki first argues that the chancery court lacked jurisdiction to determine custody of Alex because Rusty failed to make disclosures under oath as required by the UCCJEA. A provision of the act, codified at Mississippi Code Section 93-27-209 provides:
(1) Subject to any law providing for the confidentiality of procedures, addresses, and other identifying information, in a child custody proceeding, each party, in its first pleading or in an attached affidavit, shall give *347 information, if reasonably ascertainable, under oath as to the child's present address or whereabouts, the places where the child has lived during the last five (5) years, and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit must state whether the party:
(a) Has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child custody determination, if any;
(b) Knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding; and
(c) Knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the names and addresses of those persons.
(2) If the information required by subsection (1) is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished.
Miss.Code Ann. § 93-27-209 (Rev.2004) (emphasis added). Vicki argues that Rusty's failure to provide such information deprived the chancery court of jurisdiction.[2] Vicki's argument must fail for two reasons.
¶ 13. First, the chancery court's jurisdiction is set by the Mississippi Constitution, and cannot be diminished by statute. See Miss. Const. art. VI, § 159. Second, the plain language of Section 93-27-209(2) provides that, in the event the required disclosures are not filed, the court may stay the proceeding. This issue is not jurisdictional, was within the sound discretion of the chancellor, and this argument is without merit.
B. Miss.Code Ann. § 93-27-202
¶ 14. Vicki argued in her motion to dismiss and at the hearing on the matter that the Chancery Court of Tishomingo County lacked jurisdiction under Mississippi Code Section 93-27-202. The statute provides that a court of this state which has made an initial child custody determination shall have "continuous, exclusive jurisdiction over the determination until
(a) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships.
Miss.Code Ann. § 93-27-202 (Rev.2004). The record includes no order from a court of this state making a determination that "neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state." Because Rusty continuously *348 has resided in Mississippi, it was within the chancellor's discretion to determine that both the child and Rusty had a "significant connection with this state." Therefore, the chancery court properly has retained continuous, exclusive jurisdiction over this matter, and this argument is without merit.
C. Forum Non Conveniens
¶ 15. Vicki's next assignment of error is that the chancellor abused his discretion by failing to decline to exercise jurisdiction over this case on the basis of forum non conveniens.[3]
¶ 16. Evidence on the issue was presented at the hearing on Vicki's motion to dismiss, and the court gave Rusty's counsel an additional fourteen days to develop the issue. However, the court never issued a definitive ruling. Vicki argues that trial court erred by not conducting an analysis pursuant to Section 93-27-201, or alternatively, that "the Court's denial that Mississippi is an inconvenient forum is not supported by substantial evidence and is therefore an abuse of the Chancellor's discretion." However, nothing in the record suggests that the chancellor abused his discretion by failing to grant this motion, and therefore, this argument is without merit.
D. Unjustifiable Conduct
¶ 17. Vicki next argues that, based on Mississippi Code Section 93-27-208, the trial court should have denied jurisdiction over Alex's custody determination because of "unjustifiable conduct" on the part of Rusty. Section 93-27-208 provides that "if a court of this state has jurisdiction under this chapter because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction...." Miss.Code Ann. § 93-27-208 (Rev.2004). As discussed above, Mississippi has continuous, exclusive jurisdiction over this matter because it entered the initial child-custody order, not because of any alleged unjustifiable conduct on the part of Rusty. Therefore, this issue is wholly without merit.
II. Whether the court erred in awarding custody of Alex to Rusty.
*349 ¶ 18. Finding that the chancery court properly exercised jurisdiction over this case, we next turn to Vicki's argument that the chancellor erred in awarding custody of Alex to Rusty. Vicki raises three arguments: (1) that the court erred in finding a material change in circumstances as to Alex; (2) that the court failed to make any findings that the change in circumstances had an adverse effect upon Alex; and (3) the chancellor's findings under the Albright analysis were not supported by substantial evidence, were manifestly wrong, or clearly erroneous. Finding no manifest error, we affirm the judgment of the chancellor.
¶ 19. The law on custody modification is well established. "[A] non-custodial party must prove [that]: (1) there has been a substantial change in circumstances affecting the child; (2) the change adversely affects the [child's] welfare; and (3) a change in custody is in the best interest of the child." Johnson v. Gray, 859 So.2d 1006, 1013 (Miss.2003) (citing Bredemeier v. Jackson, 689 So.2d 770, 775 (Miss.1997)). "A modification of custody is warranted in the event that the moving parent successfully shows that an application of the Albright factors reveals that there had been a material change in those circumstances which has an adverse effect on the child and modification of custody would be in the child's best interest." Id. (citing Sanford v. Arinder, 800 So.2d 1267, 1272 (Miss.Ct.App.2001)). When determining whether modification is necessary, all evidence shall be viewed in light of the totality of the circumstances. Weigand v. Houghton, 730 So.2d 581, 585 (Miss.1999) (citing Ash v. Ash, 622 So.2d 1264, 1266 (Miss.1993)).
A. Material Change in Circumstances
¶ 20. Vicki argues that the chancellor erred in finding that there had been a material change in circumstances regarding Alex's care. The chancellor found the following to be a material change in circumstances adversely affecting Alex: Vicki's violation of the July 2006 order when she removed Alex from his father's care and took him to Texas; Alex's excessive absences from school; Vicki's lack of cooperation with the guardian ad litem; Vicki's failure to properly discipline Alex; and Vicki's allowing Kim and her boyfriend to share a bedroom while she had Alex's custody. Each finding will be discussed individually below.
July 2006 Order
¶ 21. Vicki first argues that the chancellor erred by considering her violation of the July order in his material-change analysis, because that order and the finding of contempt against her for violation of that order subsequently were set aside. Vicki also cites Mixon v. Sharp, 853 So.2d 834, 838 (Miss.Ct.App.2003), for the proposition that "changing child custody is not an appropriate punishment for contempt." However, "[t]he fact that such order is erroneous or irregular or improvidently granted does not justify a person in failing to abide by its terms." Ellis v. Ellis, 840 So.2d 806, 811 (Miss.Ct.App. 2003) (citing Ladner v. Ladner, 206 So.2d 620, 623 (Miss.1968)). This case also is distinguishable from Mixon, which involved a mother interfering in a father's visitation rights. Mixon, 853 So.2d at 837. Vicki removed Alex in the middle of the night in violation of a court order, and then refused to accept phone calls from either Rusty or the guardian ad litem. Interference with the exercise of custody can constitute a material change in circumstances. See Davis v. Davis, 17 So.3d 114 (Miss.Ct. App.2009); Ellis v. Ellis, 952 So.2d 982, 989-90 (Miss.Ct.App.2006). Additionally, nothing in the record suggests that the *350 award of custody to Rusty was to punish Vicki. It was not error for the chancellor to consider this matter and find it to be a material change in circumstances.
Missed School
¶ 22. Vicki next argues that, with respect to the missed school days, the chancellor "failed to recall that Alexander had missed many of those days as a result of health issues." Testimony was given by both sides as to the necessity of Alex's absences from school, including testimony by Rusty that Alex had missed only two days of school since Alex had been in his care. The chancellor concluded that "Alexander does not reach his full potential with Vicki." Testimony also was given at trial that Alex's school performance had deteriorated substantially compared to his early years of school. It was not manifest error for the chancellor to consider this issue, and his factual findings were supported by substantial evidence.
Lack of Cooperation with the Guardian ad Litem
¶ 23. Vicki next argues that it was improper for the chancellor to "penalize [her] for something she was not responsible for." Vicki argues that there is nothing in the record that reflects that Vicki obstructed or otherwise defeated any efforts by the guardian ad litem to arrange a home study. However, the guardian ad litem's report states that Vicki missed appointments and did not regularly make Alex available to speak on the phone. Vicki also failed to deliver records requested by the guardian ad litem. The chancellor's findings were supported by substantial evidence, and this argument is without merit.
Vicki's Discipline Skills
¶ 24. Vicki next argues that there was no evidence that her knowledge of discipline had changed since the entry of the original divorce decree in 1998. In effect, Vicki argues that her lack of knowledge has not changed since the divorce. Thus, she argues, it was error for the chancellor to consider her lack of knowledge as a material change in circumstances.
¶ 25. While it may be true that Vicki's discipline skills have not changed, Alex's needs have changed. Alex was three years old when the original custody decree was entered; he is now a fourteen-year-old boy. It was not error for the chancellor to consider Vicki's admitted lack of knowledge of how to discipline a fourteen-year-old Alex as part of his material-change-in circumstances and best-interest analysis.
Kim's Cohabitation
¶ 26. Finally, Vicki argues that the chancellor erred by considering Kim's cohabitation while she had Alex in her custody, because there was no showing that this had any adverse impact on Alex. However, when determining whether or not there has been a material change in circumstances with an adverse impact on the child, the chancellor must look at the totality of the circumstances. Stark v. Anderson, 748 So.2d 838, 843 (Miss.Ct. App.1999). Therefore, the chancellor did not err in considering this issue in his material-change analysis.
¶ 27. Vicki next argues that, even if there had been a material change in circumstances, the court failed to make any specific findings that the change in circumstances outlined by the court had any adverse effect on Alex. Vicki cites Sturgis v. Sturgis, 792 So.2d 1020 (Miss.Ct.App. 2001), and Ortega v. Lovell, 725 So.2d 199 (Miss.1998), for the proposition that trial courts are required to make specific findings with regard to the adverse-material-change *351 analysis. Vicki argues that the chancellor failed to make any specific findings that the circumstances outlined by the court had any adverse effect upon Alex. However, the chancellor stated, "The Court finds the following to be a material change in circumstances adversely affecting Alex:" before enumerating his findings. This argument lacks merit.
B. Albright Analysis
¶ 28. If the court finds an adverse material change, then the next step is to apply the Albright factors to determine whether modification is in the child's best interest. Sturgis v. Sturgis, 792 So.2d 1020, 1025 (Miss.Ct.App.2001). The Albright factors, used to determine what is in the best interest of the child in regard to custody, are: (1) age, health, and sex of the child; (2) a determination of the parent who had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which parent has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) the physical and mental health and age of the parents; (6) the emotional ties of parent and child; (7) the moral fitness of the parents; (8) the home, school, and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) the stability of home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).
¶ 29. Vicki argues that the chancellor's findings as to the parenting-skills factor, child-preference factor, and other factors are not supported by substantial evidence or are erroneous. The chancellor found that the parenting-skills factor favored Rusty because Alex was an honor student while with Rusty and missed little school; however, when with Vicki, Alex frequently was absent from school and did not do as well as he could academically. Vicki argues that these findings are not supported by substantial evidence, because Alex was in Rusty's care for only four months of school. This argument is without merit, however, as four months of school records are substantial evidence on which the chancellor could base his finding of fact as to this factor.
¶ 30. The chancellor discounted Alex's stated preference to live with Vicki because he found that Alex's desire is "motivated by his mother not properly disciplining him." Vicki argues that this finding was not supported by substantial evidence. However, Vicki admitted that she did not know how to discipline Alex; that her sole method of discipline was to prohibit Alex's guitar lessons, and that she realized that this discipline does not work. This determination was based on substantial evidence, and this issue is without merit.
¶ 31. Finally, Vicki argues that it was that it was error in the "other-factors" factor for the chancellor to consider the guardian ad litem's recommendation that Rusty should receive custody of Alex. Vicki argues that the chancellor should discount this report because "[it] suffered substantially because much of the information necessary for her to perform her own independent investigation was in Texas." However, Vicki cites no authority for the proposition that the chancellor's reliance on the report was in error. Further, the difficulties faced by the guardian ad litem were substantially Vicki's fault, as the chancellor found that Vicki had failed to cooperate with the guardian ad litem, did not submit to a home study as directed by the court, and did not return phone calls or provide records that the guardian ad litem *352 had requested. On appeal, we cannot reweigh the evidence and must defer to the chancellor's findings of the facts, so long as they are supported by substantial evidence. Carter v. Carter, 735 So.2d 1109, 1114 (Miss.Ct.App.1999). This argument is without merit.
CONCLUSION
¶ 32. The trial court properly exercised jurisdiction over this matter. The chancellor applied the correct legal standard, and his decision to modify custody from Vicki to Rusty is based upon substantial evidence. Therefore, the judgment of the chancery court is affirmed.
¶ 33. AFFIRMED.
WALLER, C.J., CARLSON AND GRAVES, P.JJ., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.
NOTES
[1] Rusty White is a practicing attorney in the First Chancery Court District.
[2] Vicki relies on the case of Marr v. Adair, 841 So.2d 1195 (Miss.Ct.App.2003). However, the Marr court applied a provision of the now-repealed Uniform Child Custody Jurisdiction Act (UCCJA).
[3] (1) A court of this state which has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court's own motion, or request of another court.
(2) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
(a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(b) The length of time the child has resided outside this state;
(c) The distance between the court in this state and the court in the state that would assume jurisdiction;
(d) The relative financial circumstances of the parties;
(e) Any agreement of the parties as to which state should assume jurisdiction;
(f) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(h) The familiarity of the court of each state with the facts and issues in the pending litigation.
Miss.Code Ann. § 93-27-201 (Rev.2004) (emphasis added). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1553956/ | 26 So.3d 383 (2009)
Kendrick Darnell CONNER a/k/a Rudy Talley, Appellant,
v.
STATE of Mississippi, Appellee.
No. 2008-KA-00293-COA.
Court of Appeals of Mississippi.
June 16, 2009.
Rehearing Denied November 3, 2009.
Certiorari Denied January 28, 2010.
*385 Leslie S. Lee, Jackson, Erin Elizabeth Pridgen, attorneys for appellant.
Office of the Attorney General by Stephanie Breland Wood, attorney for appellee.
Before KING, C.J., BARNES and ISHEE, JJ.
BARNES, J., for the Court.
¶ 1. On May 23, 2007, a jury sitting before the Lowndes County Circuit Court convicted Kendrick Darnell Conner of two counts of armed robbery. The circuit court sentenced Conner as a habitual offender to two concurrent sentences of thirty-five years each in the custody of the Mississippi Department of Corrections (MDOC). Following unsuccessful post-trial motions for a judgment notwithstanding the verdict (JNOV) and for a new trial, Conner now appeals. Finding no error, we affirm.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
¶ 2. On May 21, 2006, Stacie Schaffer (Stacie) and her daughter, Melissa Herrion-Schaffer (Melissa), were working at the Family Market in Columbus, Mississippi when a robber entered the store wearing a "do-rag" that covered only the left half of his face. As he entered the store, a customer who was leaving the store acknowledged him and referred to him as "Booty." Stacie testified that the robber wore a ripped, orange and white plaid shirt, while Melissa testified that he wore an orange and white striped shirt. He approached Stacie first, pulled out a gun, and demanded that she give him the money from her register. While Stacie was emptying her register, the store's air conditioner turned on, creating a gust of air which lifted the "do-rag," causing the robber's face to be exposed. He next turned his gun on Melissa, also forcing her to give him the money from her register. He put the money in one of the store's paper sacks, warned the women not to call the police, and then exited the store. After the robber left, Stacie locked the front door and told Melissa to get her things. Stacie then took Melissa home and walked to the corner store next to their house to call the police.
¶ 3. After calling the police, Stacie returned to the store to meet the officers. There, Stacie gave a description of the robber and a statement of what had transpired to Officer Bill Smith of the Columbus Police Department. However, Melissa did not give a statement to the police until the following day. On May 24, 2006, Stacie and Melissa were given separate photographic lineups and asked to point out the robber if they saw his photograph among the group. When presented with the photographic lineup, which consisted of the booking photos of the six different men, Stacie pointed out Conner as the robber. When Melissa was asked to identify the robber using the same set of pictures, she used a small piece of paper to cover the left side of Conner's face in the photograph. Melissa also identified Conner as *386 the robber. Conner is known to answer to his alias, Rudy Talley. Stacie testified that it was possible that the name she heard the customer call Conner was "Rudy" and not "Booty."
¶ 4. Conner was indicted for armed robbery on August 23, 2006. He pleaded not guilty, and a three-day trial began on May 21, 2007. At trial, Conner took the stand in his own defense. He unequivocally stated that he did not rob Stacie and Melissa at the Family Market. He claimed that, while he had been at the Family Market on the day of the robbery, he was not at the store at the time the robbery occurred. He testified that on that day he was wearing pajama pants, a t-shirt, and a tie around his neck. The jury found Conner guilty of both counts of armed robbery. The circuit court sentenced Conner to two concurrent thirty-five-year sentences, as a habitual offender, in the custody of the MDOC. Conner filed unsuccessful motions for a JNOV and, alternatively, for a new trial.
I. INEFFECTIVE ASSISTANCE OF COUNSEL
¶ 5. Conner claims that his trial counsel should not have introduced the photographic lineup into evidence; therefore, he contends that his counsel's representation was ineffective. In order to succeed on a claim of ineffective assistance of counsel, Conner must prove, using the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), that counsel's overall performance was deficient and that this deficiency prejudiced his defense. McCarty v. State, 752 So.2d 414, 415(¶ 4) (Miss.Ct.App.1999). "To show prejudice, the claimant must demonstrate that, but for his attorney's errors, there is a reasonable probability that a different result would have occurred." Id. There is, however, a presumption that a trial attorney's performance is competent. Edwards v. State, 615 So.2d 590, 596 (Miss.1993).
¶ 6. Conner's only contention that his trial counsel was ineffective is that she introduced the photographic lineup into evidence. In Mississippi, however, there is a presumption that decisions made by trial counsel are strategic. Edwards, 615 So.2d at 596. Therefore, conscious decisions by counsel to try a case in a certain manner "`fall within the ambit of trial strategy' and do not give rise to an ineffective assistance of counsel claim." Pruitt v. State, 807 So.2d 1236, 1240(¶ 8) (Miss.2002) (citing Cole v. State, 666 So.2d 767, 777 (Miss. 1995)). Upon review, we find that Conner's defense counsel definitely submitted the photographic lineup into evidence for strategic purposes. Stacie testified that the robber had a "full scraggy beard." The booking photograph, which was apparently taken the day after the robbery, showed Conner with a goatee. Defense counsel stated in closing arguments: "[T]hat's why I put this in.... I submit to you that this booking photo submitted does not match the description that they gave." The photograph used in the photographic lineup was, thus, submitted in an attempt to establish that Conner could not have been the man who had robbed the store. While Conner's appellate counsel disagrees with the trial counsel's strategy, that does not mean that trial counsel's performance was ineffective.
¶ 7. Conner further contends that he was unduly prejudiced by the photographic lineup because it was impermissibly suggestive. Conner asserts that, of the six men pictured in the photo array, his picture was distinguishable because he was the only man with a bald head. In Dennis v. State, 904 So.2d 1134, 1135(¶ 8) (Miss.Ct.App.2004), this Court acknowledged that "[a] photographic lineup is impermissibly suggestive when the accused is *387 `conspicuously singled out in some manner from others....'" (citing York v. State, 413 So.2d 1372, 1383 (Miss.1982)).
¶ 8. Upon review of the photographs used in this case, we do not find that the minor differences in hair length among the photographs are so distinctive as to improperly distinguish Conner or single him out from the group. All of the men pictured have almost shaven hair. All pictures in the lineup have the same format. The men in the photographs seem to be of similar complexion. Consequently, we do not find that the photographic lineup in this case was impermissibly suggestive. Moreover, the testimony and evidence before the jury, as laid out above, shows that the two victims identified Conner outside of court from a photographic lineup, and they also made in-court identifications of Conner as the man who had robbed them at gunpoint. Given the amount of evidence against Conner and the photographic identification by the two victims, we find no reasonable possibility that a different result would have occurred. Accordingly, Conner has not met either of the required prongs of the Strickland test outlined above. The alleged deficient performance by Conner's attorney does not rise to the level required for a finding of ineffective assistance of counsel. This assertion of error is without merit.
II. Whether the evidence was legally sufficient to support the verdict.
¶ 9. Conner also asserts that the evidence presented at trial was legally insufficient to support the jury's guilty verdict. When reviewing a challenge to the sufficiency of the evidence, this Court will reverse and render only if the facts and inferences "point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty[.]" Brown v. State, 965 So.2d 1023, 1030(¶ 25) (Miss. 2007) (quoting Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005)). The evidence will be deemed sufficient if "having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense[.]" Id. Thus, "the relevant question is whether `any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Id. at (¶ 26) (quoting Bush, 895 So.2d at 843(¶ 16)).
¶ 10. This Court considers the evidence in the light most favorable to the State. Bush, 895 So.2d at 843(¶ 16). The State also receives the benefit of all favorable inferences that may reasonably be drawn from the evidence. Wilson v. State, 936 So.2d 357, 363(¶ 16) (Miss.2006) (citing Hawthorne v. State, 835 So.2d 14, 22(¶ 32) (Miss.2003)).
¶ 11. Conner was indicted and convicted under Mississippi Code Annotated section 97-3-79 (Rev.2006), which directs that an individual is guilty of armed robbery if he "take[s] or attempt[s] to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon[.]" Conner claims that, under these guidelines, the State failed to prove beyond a reasonable doubt that he was guilty of two counts of armed robbery.
¶ 12. To substantiate his claim, Conner asserts that the two victims' eyewitness testimonies were insufficient to support the jury's guilty verdict. Specifically, he argues that the time in between the robbery and the photographic lineup identifications was long enough for Stacie and Melissa to misidentify him as the robber. As discussed above, he also argues that *388 the photographic lineup itself was unduly prejudicial because his photograph was distinguishable from the other photographs because of his bald head.
¶ 13. We find, however, that the evidence in this case, when viewed in the light most favorable to the State, was legally sufficient. We have repeatedly stated, "[C]onvictions based on eyewitness identifications at trial following a pretrial identification by photographs will be set aside `only if the photographic procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'" Purnell v. State, 878 So.2d 124, 127(¶ 7) (Miss.Ct.App.2004) (citation omitted). In accordance with the analysis above, the photographic procedure used to identify Conner was not impermissibly suggestive. Further, both Stacie and Melissa were placed in fear of immediate injury as the gun was pointed at each woman to induce her to hand over the money from her cash register. In Towner v. State, 812 So.2d 1109, 1114(¶ 23) (Miss.Ct.App.2002), this Court found that the robbery of two restaurant employees of one sum of money constituted two robberies.[1] "This is because ... robbery is a crime against persons[,]" not a crime against property. Id. Thus, two counts of armed robbery were justified in this case.
¶ 14. We find that the evidence in the instant case was legally sufficient. This assignment of error is without merit.
III. Whether the verdict was against the overwhelming weight of the evidence.
¶ 15. On a question of overwhelming weight of the evidence, this Court has stated the standard of review is as follows:
[T]his Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only when the verdict of the jury is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will we disturb that verdict on appeal.
Montgomery v. State, 830 So.2d 1269, 1273(¶ 16) (Miss.Ct.App.2002) (citation omitted).
¶ 16. Based upon the facts previously discussed, we find that Conner's guilty verdict is not so contrary to the evidence as to constitute an unconscionable injustice. Furthermore, the evidence does not weigh heavily against the jury's verdict. Accordingly, we find that Conner's conviction was not against the overwhelming weight of the evidence.
CONCLUSION
¶ 17. Based on the foregoing, we find no error and affirm.
¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF CONVICTION OF COUNT I, ARMED ROBBERY, AND COUNT II, ARMED ROBBERY, AND SENTENCE OF THIRTY-FIVE YEARS AS A HABITUAL OFFENDER FOR BOTH COUNTS I AND II, WITH THE SENTENCES TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF *389 CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.
NOTES
[1] The dissent in Towner argued that there should have been only one count of armed robbery due to the fact that the indictments attributed the same sum of money to both victims. Id. at 1117 (¶¶ 36-38) (King, P.J., dissenting). However, the dissent's argument in Towner is not applicable here as both victims, Stacie and Melissa, were deprived of money from their individual cash registers. Therefore, there were two separate sums of money involved for the two separate counts. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1553999/ | 26 So.3d 29 (2009)
Michael BARLATIER, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D08-1189.
District Court of Appeal of Florida, Third District.
December 16, 2009.
Rehearing Denied January 27, 2010.
*30 Carlos J. Martinez, Public Defender, and Leslie Scalley, Special Assistant Public Defender, Tampa, for appellant.
Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
Before RAMIREZ, C.J., and GERSTEN and SUAREZ, JJ.
SUAREZ, J.
The defendant appeals his conviction and sentence for unlawful possession of a firearm by a convicted felon. We affirm.
The defendant was charged by an amended three-count information with resisting an officer with violence, battery on a law enforcement officer and unlawful possession of a firearm by a convicted felon. Prior to trial, the State and the defense agreed to sever Counts I and II and proceed to trial on Count III, the unlawful possession of a firearm charge. Miami Police Detective Thomas was the first witness for the State. He testified that, on November 15, 2003, while on duty, he received information regarding an arrest warrant for the defendant along with an address and description of the vehicle he was driving. The first time the detective arrived at the address, the defendant *31 was not present. Later that evening, the detective observed the described vehicle at the given address and set up a surveillance perimeter. He observed two suspects walking to the vehicle, one going to the driver's side and the other to the passenger's side. When the vehicle drove off, he called for Robbery Intervention Detail to block the car so that the occupants could not escape. Once the vehicle was blocked, Detective Thomas walked up to the passenger's side and asked the passenger to step outside. He then handcuffed the passenger. Weapons were neither observed on the passenger's side of the vehicle nor seen being placed on the driver's side. Another officer, Detective Burke, identified the driver as the defendant, Michael Barlatier, and ordered him to step out of the vehicle. When the defendant stuck his foot outside the car as if he were getting out of the vehicle, Detective Burke saw the gun on the floor. Burke yelled "fifty-five" to signal the presence of a gun. The defendant made a swiping motion, as if he was going to knock the gun back under the seat to hide the weapon. Detective Burke did not see anyone else touch the gun. Detective Thomas testified that he also saw the gun protruding from under the seat of the driver's side of the vehicle. He further testified that the defendant did not have the opportunity to stop the car and switch positions with the passenger. The defendant's girlfriend testified that she lent the car to the defendant two or three days prior to the incident, but that she never brought firearms into the vehicle. At the close of the State's case, the defendant moved for a judgment of acquittal arguing that the State did not meet its burden of proving constructive possession of the gun. The trial court denied the motion. During closing argument, there were un-ruled-upon objections to the prosecutor's summary of the law on constructive possession and the prosecutor's speculation that there was no evidence presented that the defendant's girlfriend could have placed the gun in the vehicle.[1] The trial court instructed the jury on the law of constructive possession and on the general rule that what attorneys say is not evidence. The case then went to the jury. The jury returned a verdict finding the defendant guilty of possession of a firearm by a convicted felon. He was sentenced to thirty years in prison as a habitual offender. The defendant appeals his conviction and sentence.
The defendant raises two points on appeal. The first alleges error in the denial of the motion for judgment of acquittal on grounds that the evidence was insufficient to support the conviction for possession of a firearm by a convicted felon. The defendant bases his argument on the proposition that constructive possession was not established as there was no evidence that the defendant knew the firearm was in the car or that he exercised control over it.
A trial court's ruling on a motion for judgment of acquittal is reviewed de novo. Boyd v. State, 910 So.2d 167 (Fla. 2005). Constructive possession exists where a person without physically possessing a firearm knows of its presence and *32 has the ability to maintain control over it. See Hunter v. State, 914 So.2d 985 (Fla. 4th DCA 2005). The facts, as established through the detectives' observations and testimony, excluded the possibility that someone other than the defendant could have placed the gun under the driver's seat between the time the vehicle was approached and pulled over until it was searched, or that someone other than the defendant could have placed the gun under the driver's seat while the search was ongoing. In accordance with the detectives' observations and conclusions, the only one that could have had possession and control over the gun was the defendant. Cf. Petion v. State, 4 So.3d 83 (Fla. 4th DCA 2009), review granted, 15 So.3d 581 (Fla. 2009). That the defendant was trying to knock the gun back under the seat to hide it is in accord with the detective's testimony that established that the defendant "[put] his hand down not as if he is going to grab the gun, but as if he's going to swipe the gun, knock it back under the seat with his arm and he has his arm extending and his leg out." The circumstantial evidence in this case surrounding the discovery of the gun in plain view under the driver's seat where the defendant was sitting was sufficient to establish constructive possession on the motion for judgment of acquittal. The facts are sufficient for the jury to infer that the defendant knew of the presence of the gun and had the ability to control it. The issue of constructive possession was rightfully submitted to the jury for deliberation. See Muwwakil v. State, 435 So.2d 304, 305 (Fla. 3d DCA 1983) ("The test to be applied on review of a denial of a motion for judgment of acquittal is not whether, in the opinion of the trial court or appellate court, the evidence fails to exclude every reasonable hypothesis but that of guilt but, rather, whether the jury might reasonably so conclude."). The trial court was correct in denying the defendant's motion for judgment of acquittal.
The second point on appeal alleges error in the prosecutorial comment that the defendant was guilty because of the fact that he was a convicted felon with a gun in the car and the State's comment in closing argument that no evidence was presented that the defendant's girlfriend could have left the gun in the car. The defendant alleges that the second remark was a comment on his Fifth Amendment right to remain silent. Defendant's arguments that the prosecutor misstated the law and that the State implied that the defendant failed to present evidence that someone, like the defendant's girlfriend, could have placed the gun under the seat, fall under the harmless error test. See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986). Because the correct law was later clarified in closing argument by defense[2] counsel, the State[3] and also by the trial *33 judge who instructed that arguments of counsel do not constitute evidence and gave the correct instructions for the jury to follow, there was no reasonable probability that the misstatements contributed to the verdict and no fundamental error occurred. See Cox v. State, 966 So.2d 337, 346 (Fla.2007) (concluding that prosecutorial misrepresentation of the responsibility of the jury with regard to weighing the evidence was not so fundamental error as to reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error). The State's comment on the lack of evidence to show that the girlfriend might have placed the gun under the seat was an invited response and a fair comment on the evidence, not violative of the rule prohibiting comment on the defendant's failure to testify. See, e.g., State v. Mathis, 278 So.2d 280 (Fla.1973).
The defendant's conviction for possession of a firearm by a convicted felon is therefore affirmed.
Affirmed.
NOTES
[1] The prosecutor stated:
If Michael Barlatier gets in there, just starting off with the presumption that he didn't take it with him, but if he gets in there and that gun is in there he's in possession of it.
. . . .
You certainly knew it's there, but I'm sorry folks, I'm here to tell you, if you're a convicted felon and you go to get into a car and there's a gun sitting on the floor, you're not allowed to get in the car.
. . . .
We can speculate that yes, Kelly Palmer three days before could have left it there but what evidence do you have of that? None.
[2] Defense counsel stated:
There are some points which Mr. Vandergeisen has brought out which are just not correct, which is flat out wrong. It is not a crime for Mr. Barlatier to have been in that car in the presence of that firearm. That's not the charge. The charge is that Mr. Barlatier has possession of the firearm.
There are two ways that the law says a person can be in possession of a firearm and the Court is going to instruct you on them....
[3] The prosecutor stated:
What's going to happen is the Judge is going to read to you guys these instructions abut what the law is. And the then you're going to be given a packet of them to take back. What this is, is a blow up so I can explain to you how the facts fit.
The first one is that the defendant was a convicted felon at the time. The reason why I say possession is an issue and how the gun got there may not necessarily be an issue is because of this. After the defendant was a convicted felon, he knowingly, we know that's true, he's a convicted felon and couldn't have knowingly owned a gun. It's part of the instruction and this an option, not telling you I'm not trying to prove that he didn't knowingly own that gun. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1554977/ | 429 F.Supp. 181 (1977)
Marilyn LLOYD, etc., Plaintiff,
v.
CESSNA AIRCRAFT COMPANY, Defendant and Third-party Plaintiff,
v.
UNITED STATES of America et al., Third-party Defendants.
UNITED STATES of America, Fourth-party Plaintiff,
v.
SERV-AERO ENGINEERING, INC., Fourth-party Defendant.
No. CIV-4-75-40.
United States District Court, E. D. Tennessee, Winchester Division.
February 2, 1977.
*182 John C. Curtis and Charles P. Dupree, Chattanooga, Tenn., for plaintiff Marilyn Lloyd.
W. Ferber Tracy, Chattanooga, Tenn., for Santa Monica Propeller Service.
Samuel R. Anderson, Chattanooga, Tenn., for Serv-Aero Engineering, Inc.
Paul R. Leitner and R. Vann Owens, Chattanooga, Tenn., for Cessna.
John L. Bowers, Jr., U. S. Atty., Knoxville, Tenn., Hugh Moore, Chattanooga, Tenn., Andrew J. Dilk, Jr., and Jonathan M. Hoffman, Dept. of Justice, Washington, D. C., for the United States.
MEMORANDUM OPINION AND ORDERS
NEESE, District Judge.
This is a civil action for the recovery of compensatory and punitive damages for the wrongful death of the plaintiff's decedent in the crash of his privately-owned and operated aircraft. 28 U.S.C. § 1332(a)(1), (c). The defendant Cessna Aircraft Company (Cessna) commenced a third-party action, Rule 14(a), Federal Rules of Civil Procedure, against the United States of America (the government) for contribution or indemnity under the Federal Tort Claims Act. 28 U.S.C. §§ 1346(b), 2671, et seq. The government moved for a dismissal thereof, contending, inter alia, that such claim is barred by the "misrepresentation exception" to the aforementioned act, 28 U.S.C. § 2680(h), and that accordingly, this Court lacks jurisdiction of the subject matter. Rule 12(b)(1), Federal Rules of Civil Procedure. The Court agrees such contention is correct.
The Federal Tort Claims Act, supra, is a broad waiver of the federal government's immunity from liability for the torts of its employees committed while acting in the scope of their employment. Fitch v. United States, C.A. 6th (1975), 513 F.2d 1013, 1015[1], certiorari denied (1976), 423 U.S. 866, 96 S.Ct. 127, 46 L.Ed.2d 95. Such act "* * * contains various exceptions, however, and in construing the Act the courts must `carry out the legislative purpose of allowing suits against the Government for negligence with due regard for the statutory exceptions to that policy.' * * *" Idem., quoting from Dalehite v. United States (1953), 346 U.S. 15, 31, 73 S.Ct. 956, 965[5], 97 L.Ed. 1427. Where the conduct complained of falls within one of the statutory exceptions, the district court is without jurisdiction of the subject matter thereof. United States v. Taylor, C.A. 6th (1956), 236 F.2d 649, 652[2], motion to remand denied (1957), 353 U.S. 956, 77 S.Ct. 862, 1 L.Ed.2d 907, certiorari dismissed (1958), 355 U.S. 801, 78 S.Ct. 6, 2 L.Ed.2d 19; Konecny v. United States, C.A. 8th (1967), 388 F.2d 59, 62[2-5]; Gibson v. United States, C.A.3d (1972), 457 F.2d 1391, 1392 n. 1; Robinson v. United States, D.C.Tenn. (1976), 422 F.Supp. 121, 122[1].
Inter alia, the Congress has provided that the aforementioned limited waiver of sovereign immunity "* * * shall not apply to * * * [a]ny claim arising out of * * * misrepresentation. * * *." 28 U.S.C. § 2680(h). This term must be construed according to the traditional and commonly understood legal definition of such tort. United States v. Neustadt (1961), 366 U.S. 696, 706, 81 S.Ct. 1294, 1300[4], 6 L.Ed.2d 614; Fitch v. United States, supra, 513 F.2d at 1015[2]. "* * * It is settled that this exception includes claims arising out of negligent as well as intentional misrepresentation. * * *" Fitch v. United States, supra, citing Neustadt v. United States, supra.[1]
Herein, the third-party plaintiff Cessna seeks indemnification or contribution from the national sovereign for the alleged negligence of its agents and employees in the Federal Aviation Administration in their inspection and testing of the aircraft involved prior to such agency's issuance of a supplemental-type certificate and an airworthiness certificate therefor. Specifically, Cessna claims that:
* * * * * *
*183 * * * the agents and employees of the third-party defendant the United States of America, through its agency the FAA, while acting within the scope of their employment and office, authorized the issuance of an airworthiness certificate for the aircraft involved herein; that such agents and employees were negligent in so doing, in that such certificate was issued without adequate inspection and testing of the safety and suitability of the airframe, engine, enginemount and propeller-combination of such aircraft; that the negligence of the FAA, in failing to properly enforce the applicable existing regulations and policies related thereto in the issuance of the supplemental type certificate and airworthiness certificate, was a proximate cause of this crash; that the negligence of the FAA, in certifying the use of the engine-mount involved, when it knew or should have known that the mount was inadequate for such use, was a proximate cause of this crash; that such accident was the sole and proximate result of such active and primary negligence on behalf of such agents of the third-party defendants, including Mr. Ray Fulton of Santa Monica Propeller Service, who is authorized to sign on behalf of the FAA, and who on May 1, 1968 certified that [the propeller] hub [which the plaintiff claims was the cause of her decedent's death] was repaired and inspected in accordance with current Civil Air Regulations and was found airworthy for return and service; and that, under the Federal Tort Claims Act, 28 U.S.C. § [2671], et seq., it is entitled to indemnification and contribution from the United States for any judgment rendered against it herein.
* * * * * *
Revised pretrial order herein of September 22, 1976, § II(c)(1).[2]
Although Cessna has cast its third-party claims against the government "* * * in the guise of a negligence action, this does not automatically take the case outside the misrepresentation exception. * * *" Fitch v. United States, supra, 513 F.2d at 1015[3, 4]. The Court must look beyond the literal meaning of such claims, to ascertain the real nature of Cessna's allegations against the government. Idem. In determining whether the conduct complained of falls within an exception to the aforecited act, the substance of the claim, and not the language used in stating it, is controlling. Gaudet v. United States, C.A.5th (1975), 517 F.2d 1034, 1035[5].
The critical issue is, not whether Cessna has asserted its claim in terms of negligence, but whether the Congress intended to bar this type of suit, under whatever legal theory it is brought, by expressly limiting its waiver of governmental immunity in the Federal Tort Claims Act, supra. See 35 Am.Jur. (2d) 306-307, Federal Tort Claims Act § 14. In several cases arising under the Federal Tort Claims Act, supra, the courts have held that negligent inspections and testing by government officials, which conduct results in incorrect information being reported and relied upon, in reality amount to a claim arising out of misrepresentation so as to be precluded by the aforementioned exception to the aforecited act.
The starting point in such a consideration is clearly the decision of the Tenth Circuit in Hall v. United States, C.A.10th (1959), 274 F.2d 69. Therein, the plaintiff, a cattleman, sought to recover money damages from the national sovereign for harm sustained from the negligent testing of his cattle by employees of the U.S. Department of Agriculture. Such test-results, which were revealed to the plaintiff, indicated that his cattle were diseased. As a proximate consequence, the plaintiff's herd was subject to quarantine, so that the sale thereof was necessarily made at a reduced *184 price. Although the plaintiff argued that his suit was predicated upon the negligence of the government's employees, and not upon any misrepresentation, the Tenth Circuit rejected such contention. In so doing, the Court stated:
* * * * * *
* * * [The] [p]laintiff's real claim is that because of the negligent manner in which these tests were made, the result showed that [the] plaintiff's cattle were diseased; whereas, in fact, they were free from disease and that the Government misrepresented the true condition of these cattle. [The] [p]laintiff's loss came about when the Government agents misrepresented the condition of the cattle, telling him they were diseased when, in fact, they were free from disease. The claim is that this misrepresentation caused [the] plaintiff to sell his cattle at a loss. This stated a cause of action predicated on a misrepresentation. * * *
* * * * * *
Ibid., 274 F.2d at 71[1]. The Court pointed out, however, that there was "* * * no claim that because of [such] negligent testing these cattle suffered physical damages which made them less valuable, such as may come from the use of a noxious or poisonous substance. * * *" Ibid., 274 F.2d at 71. Implicit in such statement is a recognition that, if the government had actually physically damaged these cattle during their inspection and testing, then such conduct would not have been barred by the misrepresentation exception.
The Hall rationale was followed two years later by the Supreme Court in United States v. Neustadt, supra. Therein, the Court held that this misrepresentation exception likewise barred a claim by a purchaser of a home who, in reliance upon a negligent inspection and appraisal by personnel of the Federal Housing Administration, had been induced to pay more for property than it was actually worth, and accordingly, who had sustained monetary damages. The plaintiffs' contention therein, that their action was predicated upon the negligence of the federal government and not upon misrepresentation, was rejected by the Court. Neither was the Court persuaded by the plaintiffs' further argument that their lawsuit was based upon the breach of a specific duty owed to them by the government. It was explained:
* * * * * *
* * * To say * * * that a claim arises out of "negligence," rather than "misrepresentation," when the loss suffered by the injured party is caused by the breach of a "specific duty" owed by the Government to him, i. e., the duty to use due care in obtaining and communicating information upon which that party may reasonably be expected to rely * * is only to state the traditional and commonly understood legal definition of the tort of "negligent misrepresentation," * * * which there is every reason to believe Congress had in mind when it placed the word "misrepresentation" before the word "deceit" in [28 U.S.C.] § 2680(h). * * *
* * * * * *
Ibid., 366 U.S. at 706-707, 81 S.Ct. at 1300-1301[4].
Both Hall and Neustadt, supra, were principally relied upon by the Sixth Circuit in its recent decision in Fitch v. United States, supra. That was an action under the Federal Tort Claims Act, supra, to recover money damages from the national government for the plaintiff's wrongful induction into the armed forces. Because of the alleged negligence of the employees of his local draft board, the plaintiff's draft lottery number was erroneously transcribed as 132 instead of 309. While stationed in Viet Nam, the plaintiff was informed of the error and was discharged shortly thereafter. The Court of Appeals reversed the trial court's judgment in favor of the plaintiff and directed that the complaint be dismissed. In so doing, Judge Celebrezze wrote that:
* * * * * *
As in Hall [supra], [the plaintiff's] complaint "arose out of" a negligent misrepresentation. It occurred when *185 Government agents misrepresented [the plaintiff's] obligation to enter the Army, telling him that he was required to serve when, in fact, he was free from that duty. We are under the same obligation to dismiss the complaint as the Supreme Court recognized in Neustadt:
While we do not condone carelessness by government employees in gathering and promulgating such information, neither can we justifiably ignore the plain words Congress has used in limiting the scope of the Government's tort liability. 366 U.S. at 710-11, 81 S.Ct. at 1302.
* * * * * *
Fitch v. United States, supra, 513 F.2d at 1016[5].
Numerous other decisions cited by the Sixth Circuit in Fitch, supra, "* * * have uniformly applied this analysis in barring actions which arose out of misrepresentations by Government employees. * *" Ibid., 513 F.2d at 1016 n. 2. "* * * An incorrect representation is [a] `misrepresentation' within the meaning of * * * [28 U.S.C. § 2680(h)], whether wilful or based upon negligence in ascertaining the facts represented. * * *" DeLange v. United States, C.A.9th (1967), 372 F.2d 134[2]. Thus, where the negligence of federal employees, whether by inspection, testing, diagnosis, or otherwise, has resulted in the conveyance of erroneous information, thereby causing damages or other loss to the plaintiff, the courts have held that any action against the national sovereign based on the Federal Tort Claims Act, supra is barred by the misrepresentation exception. See: Rey v. United States, C.A.5th (1973), 484 F.2d 45 (negligent diagnosis or testing of the plaintiffs' hogs resulting in erroneous notification that such animals were inflicted with hog cholera, causing subsequent loss by required quarantine and inoculation); Reamer v. United States, C.A.4th (1972), 459 F.2d 709 (misrepresentation that the plaintiff could defer active duty until completion of law school semester if he enlisted, resulting in monetary loss upon earlier order to active duty); Mizokami v. United States, (1969), 414 F.2d 1375, 188 Ct.Cl. 736 (negligence resulting in erroneous determination by Federal Food and Drug Administration personnel that the plaintiffs' spinach crops were contaminated by a pesticide); DeLange v. United States, supra (erroneous diagnosis by physician); Anglo-American & Overseas Corp. v. United States, C.A.2d (1957), 242 F.2d 236 (misrepresentation that tomato paste could be imported as in compliance with FDA standards, resulting in destruction of goods as unsafe after their importation); National Mfg. Co. v. United States, C.A.8th (1954), 210 F.2d 263, certiorari denied (1954), 347 U.S. 967, 74 S.Ct. 778, 98 L.Ed. 1108 (misrepresentation of weather and flood information, causing property damage); Clark v. United States, C.A.9th (1954), 218 F.2d 446 (misrepresentation of safety from flood of town built as a war project); Jones v. United States, C.A.2d (1953), 207 F.2d 563, certiorari denied (1954), 347 U.S. 921, 74 S.Ct. 518, 98 L.Ed. 1075 (misrepresentation of amount of oil estimated to be on land, resulting in sale of stock at a loss); Vaughn v. United States, D.C.Miss. (1966), 259 F.Supp. 286 (misrepresentation of pipeline placement on government map, resulting in explosion upon impact of the plaintiff's dragline); Steinmasel v. United States, D.C.S.D. (1962), 202 F.Supp. 335 (misrepresentation of deadline for requesting veterans' benefits, resulting in ineligibility for educational benefits).
Each of the foregoing cases was cited with approval by the Sixth Circuit in Fitch, supra. In addition, there are other decisions in accord: Scanwell Laboratories, Inc. v. Thomas, (1975), 172 U.S.App.D.C. 281, 521 F.2d 941 (misrepresentation of personnel of the Federal Aviation Administration that it would abide by the terms of a bid invitation and by its own regulations); Saxton v. United States, C.A.8th (1972), 456 F.2d 1105 (erroneous government report that the plaintiff's cattle were not diseased, so as to prevent the timely treatment of such diseased animals); Miller Harness Co. v. United States, C.A.2d (1957), 241 F.2d 781 (misrepresentation by the government as to the contents of certain auctioned property); Western Steel Buildings, Inc. v. Adams, *186 D.C.Col. (1968), 286 F.Supp. 570 (erroneous representation in government publication concerning the pressure on warehouse walls which collapsed); United States v. Sheehan Properties, Incorporated, D.C.Minn. (1968), 285 F.Supp. 608 (negligence of government personnel in failing to inform plaintiff of certain facts concerning his investment in a corporation); Bartie v. United States, D.C.La. (1963), 216 F.Supp. 10, affirmed C.A.5th (1964), 326 F.2d 754, certiorari denied (1964), 379 U.S. 852, 85 S.Ct. 98, 13 L.Ed.2d 55 (negligence of weather bureau in giving misinformation concerning a hurricane, resulting in the death of the plaintiff's wife and children).
More persuasive, however, are the decisions of two federal district courts holding that federal tort claim actions, based upon the Federal Aviation Administration's negligence in issuing an airworthiness certificate, fall within the misrepresentation exception. In Marival, Inc. v. Planes, Inc., D.C.Ga. (1969), 306 F.Supp. 855, an airplane purchaser brought an action to recover damages from the defendant seller on the basis of the latter's misrepresentation and breach of implied warranties concerning the condition of such aircraft. The defendant filed a third-party action against the government under the Federal Tort Claims Act, supra, upon the theory that its personnel had negligently issued an airworthiness certificate for such aircraft upon which such defendant had relied. The defendant and third-party plaintiff's contention was that, if the aircraft was in fact unairworthy, the government inspector negligently made his annual inspection and negligently certified the craft's airworthiness. In granting the government's motion for a dismissal because of the misrepresentation exception, the Court noted that "* * * [t]he real question * * * is whether the third-party complaint is founded upon an allegation of negligent inspection of the aircraft or negligent misrepresentation, through a certificate that the aircraft was airworthy. * * *" Ibid., 306 F.Supp. at 858[7]. The Court concluded that the third-party "* * * complaint and [the] hopes for recovery [were] bottomed upon negligent misrepresentation, rather than negligent conduct. * * *" Idem. This was true even though "* * * [n]egligent conduct in acquiring the facts may have led to the negligent misrepresentation, but the injuries arose from the misrepresentation and not the negligent conduct. * * *" Ibid., 306 F.Supp. at 859[8].
A similar ruling was made by Judge Finesilver in Dieter Bibbig, Etc., plaintiff, v. United States of America, defendant, D.C. Col. (1973), civil action no. C-4604, order of May 3, 1973. That action was brought under the Federal Tort Claims Act, supra, seeking damages for the crash of a motorized glider aircraft which allegedly had been "* * * negligently inspected and issued an airworthiness certificate * *" by an agent of the Federal Aviation Administration. Upon considering the government's motion for a dismissal, the issue presented was whether the "* * * negligent inspection and certification of an aircraft by an FAA inspector constitute[d] a claim based on misrepresentation within the meaning of 28 U.S.C. § 2680(h). * * *" After reviewing many of the cases cited hereinabove, Judge Finesilver concluded "* * * that the actions of the government inspector f[e]ll within [such] protected exception of Federal tort liability * *." Explicitly rejected therein was the plaintiff's contention that cases in which the misrepresentation was applied to a commercial setting were irrelevant to the facts of such lawsuit. Accordingly, the government's motion was granted, and the complaint against the government was dismissed.
In light of the foregoing, it is the Court's opinion that Cessna's third-party claim herein against the government arises out of the latter's misrepresentation, so as to be barred by the aforementioned statutory exception.[3] Any negligent conduct by the *187 government's agents and employees, as alleged herein, could amount to nothing more than a misrepresentation as to the true condition of the aircraft involved. If the airworthiness certificate and the supplemental-type certificate were improperly issued because of the negligence of FAA's personnel, as is claimed by Cessna, then such was the conveyance of erroneous information as to the actual condition of this aircraft. If the government certified that this plane was airworthy, when in fact it was not, then such third-party defendant misrepresented such true fact. There is no claim made by Cessna herein that, in their inspection or testing, the government personnel caused any direct physical harm to the aircraft itself which resulted in or contributed to the fatal crash which is the subject hereof. Rather, the whole purport of Cessna's contentions is that the government, through the Federal Aviation Administration, represented by its issuance of the aforementioned certificates that this aircraft was airworthy when actually it was not.
The Court finds Cessna's arguments to the contrary unpersuasive. As is demonstrated by the authorities heretofore cited, the misrepresentation-exception is just as applicable to actions involving personal injury, wrongful death, or property damages, as it is to those involving only financial or commercial loss. This Court is unaware of any indication that the Congress intended such exception to apply only to the latter types of lawsuits. See and cf. Restatement of the Law Second, Torts (2d) § 311, comment d, illustration 8. The cases of Wenninger v. United States, D.C.Del. (1964), 234 F.Supp. 499, affirmed C.A.3d (1968), 352 F.2d 523, and Ingham v. Eastern Airlines, Inc., C.A.2d (1967), 373 F.2d 227, certiorari denied (1967), 389 U.S. 931, 88 S.Ct. 295, 19 L.Ed.2d 292, cited by Cessna, are inapposite. Each such decision involved an alleged negligent failure by government personnel to warn of an imminently hazardous condition to aircraft, as opposed to an affirmative false representation of the absence of a dangerous or unsafe condition.
It results that the motion of the third-party defendant the United States of America for a dismissal of the third-party claim against it herein hereby is GRANTED.[4] Such third-party action hereby is DISMISSED for lack of the Court's jurisdiction of the subject matter. Rule 12(h)(3), Federal Rules of Civil Procedure; 28 U.S.C. § 2680(h). Such disposition of the third-party action against the government renders MOOT all motions pending herein. Furthermore, since the government's fourth-party action herein against Serv-Aero Engineering, Inc. is premised upon a finding of the government's liability herein, such fourth-party claim has been rendered MOOT, and the same hereby is DISMISSED. Rule 14(a), Federal Rules of Civil Procedure.
The Court hereby DETERMINES expressly that there is no just reason for delay in so doing and hereby DIRECTS the entry of a final judgment for the third-party defendant United States of America on the third-party claim herein of the third-party plaintiff Cessna Aircraft Company and the entry of a final judgment for the fourth-party defendant Serv-Aero Engineering, Inc. on the fourth-party claim herein of the fourth-party plaintiff United States of America. Rules 54(b), 58(2), Federal Rules of Civil Procedure.
Counsel for the plaintiff Ms. Lloyd, etc., the defendant and third-party plaintiff Cessna Aircraft Company, and the third-party defendant Santa Monica Propeller Service, respectively, will consult and, within 10 days herefrom, report through the clerk their joint revised estimate of the *188 probable length of trial as to the issues remaining and the chances of settlement thereof prior to trial.
NOTES
[1] For numerous other cases in accord, see anno: Federal Tort Claims ActMisrepresentation and Deceit, 30 A.L.R.Fed. 421, 437, § 3[b].
[2] Such pretrial order, by its terms, supplanted the pleadings herein. Ibid., at X(b); United States v. Hougham (1960), 364 U.S. 310, 315, 81 S.Ct. 13, 5 L.Ed.2d 8, 14 (headnote 4), rehearing denied (1960), 364 U.S. 938, 81 S.Ct. 376, 5 L.Ed.2d 372; Monod v. Futura, Inc., C.A.10th (1969), 415 F.2d 1170, 1173[1].
[3] The conduct of the government's personnel complained of herein by Cessna clearly falls into the American Law Institute's definition of "negligent misrepresentation." Restatement of the Law, Second, Torts (2d), § 311, see especially comment d, illustration 8. Such section has been applied to the conduct of the federal government in an action brought under the Suits in Admiralty Act, 46 U.S.C. § 742. Kommanvittselskapet Harwi (R. Wigand) v. United States, C.A.3d (1972), 467 F.2d 456, 459 n. 4, 464 n. 10, certiorari denied (1973), 411 U.S. 931, 93 S.Ct. 1898, 36 L.Ed.2d 391.
[4] The Court expresses no opinion as to the merit of any of the government's other contentions urged in support of its motion for a dismissal of such claim against it. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1554991/ | 429 F.Supp. 16 (1977)
Edward M. MURPHY, II
v.
STATE BOARD OF LAW EXAMINERS FOR the COMMONWEALTH OF PENNSYLVANIA.
Civ. A. No. 77-458.
United States District Court, E. D. Pennsylvania.
March 29, 1977.
Edward M. Murphy, II, pro se.
Jonathan Vipond, III, Philadelphia, Pa., for defendant.
MEMORANDUM
GORBEY, District Judge.
Plaintiff, a graduate of Western State University College of Law in 1976, applied *17 to the Pennsylvania State Board of Law Examiners for permission to sit for the winter bar examination on February 22 and 23, 1977.
On November 24, 1976, plaintiff was notified by the State Board that he could not take the bar examination because his law school, although accredited in California, is not accredited by the American Bar Association, citing Rule 8 C which provides:
C. To qualify for the bar examination an applicant: . . .
2. shall have completed the study of law in a law school accredited by the American Bar Association; or shall have acquired a legal education which in the opinion of the State Board is the equivalent.
In a letter from the Secretary of the State Board of Law Examiners to the plaintiff, dated November 24, 1976, he was informed that:
The Supreme Court of Pennsylvania has indicated to the State Board of Law Examiners that the `equivalency' rule applies only to graduates of law schools which are not subject to A.B.A. accreditation . . .
Plaintiff's Complaint, Appendix A.
That category of law students would, of course, include law schools in foreign nations.
Following his denial by the State Board, plaintiff petitioned the Supreme Court of Pennsylvania, which, on December 23, 1976, denied the petition (Plaintiff's Complaint, Appendix C). Thereafter, on February 7, 1977, plaintiff filed a complaint in the above-captioned case seeking a declaratory judgment as to his right to take the Pennsylvania Bar examination, and, if successful in passing it, to be admitted to the practice of law in Pennsylvania.
The plaintiff has invoked this court's jurisdiction pursuant to 28 U.S.C. §§ 2201, 2202, 2281, 2284, 1343(3), 1331; also 42 U.S.C. § 1983, although the State Board is not a "person" within the meaning of that statute and no relief could be granted pursuant to it. 28 U.S.C. § 1331(a) requires both a federal question as well as a claim of damages in the jurisdictional amount in excess of $10,000. 28 U.S.C. §§ 2201, 2202, with respect to declaratory judgment are remedial and are not intended to confer jurisdiction where none already exists.
The Pennsylvania Constitution grants the Supreme Court of Pennsylvania the responsibility to promulgate rules governing admissions to the Bar. Article V, § 10c.
By Supreme Court Rule 7, the State Board of Law Examiners has been vested with the responsibility of enforcing the court's rules concerning registration and admission to the Bar, and is authorized to issue a certificate recommending admission to the Bar to each applicant it has found to be fit and qualified under the Supreme Court's rules. Finally, no person can be admitted unless the Supreme Court, upon motion of a member of the Bar and submission of the certificate from the State Board of Law Examiners, grants admission.
The pro se complaint, while it aims its alleged constitutional infirmities at the action of the State Board of Law Examiners, must nevertheless be regarded as an attack on the Supreme Court of Pennsylvania since it affirmed the action of the State Board, thereby judicially deciding that the State Board's interpretation of Rule 8 C(2) was correct. In substance, therefore, plaintiff is here attacking on constitutional grounds the action of the Supreme Court of Pennsylvania in enforcing its own rule.
It appears, therefore, that the State Board of Law Examiners is not an appropriate party to this suit and that the Supreme Court of Pennsylvania would be an indispensable party, assuming a jurisdictional basis for such a suit.
The fundamental question here presented is whether Rule 8 C(2) as interpreted by the State Board of Law Examiners whose action was affirmed by the Supreme Court of Pennsylvania, violates rights granted to him by the United States Constitution.
There is no inherent right to practice law in the state courts until the individual has established the requisite qualifications *18 as prescribed by the state. In re Lockwood, 154 U.S. 116, 117, 14 S.Ct. 1082, 1083, 38 L.Ed. 929 (1894).
The classification created by the Supreme Court of Pennsylvania rule, one class of graduates of law schools accredited by the American Bar Association, and the other class of graduates of non-American Bar Associated law schools, does not, of itself, violate the Equal Protection Clause of the Fourteenth Amendment because that clause "does not mean that a state may not draw lines that treat one class of individuals or entities differently from the others. The test is whether the difference is an invidious discrimination". Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973).
The classification is not a suspect classification as it does not involve race, creed or alienage, or any classification which invidiously discriminates against an insular minority. In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973).
It has consistently been held that a state's professional licensing statute is deemed constitutional if it is rationally related to a valid state objection. Schware v. Board of Bar Exam. of State of N. M., 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957).
The rules governing admission to the Bar are based on state interest in assuring a competent Bar, and the protection of the public. Accordingly, the Supreme Court of Pennsylvania can constitutionally require applicants to meet standards of professional competence as long as the standards are reasonable. Chaney v. State Bar of California, 386 F.2d 962 (9th Cir. 1967). Since classification here is rationally related to the state's valid state interest, scrutiny by this court as to its wisdom is not sanctioned by the Equal Protection Clause of the United States Constitution, but may properly be a subject for consideration by the judicial body which is responsible for its existence.
The plaintiff, not having stated a cause of action for which relief can be granted, it follows that, pursuant to Fed.R.Civ.Proc. 12(b)(6), the complaint must be dismissed. Feldman v. State Board of Law Examiners, 438 F.2d 699 (8th Cir. 1971); Ricci v. State Board of Law Examiners, 427 F.Supp. 611 (E.D.Pa.), Opinion dated January 7, 1977. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556614/ | 30 So.3d 662 (2010)
Devin BLOUNT, Appellant,
v.
STATE of Florida, Appellee.
No. 4D08-4620.
District Court of Appeal of Florida, Fourth District.
March 17, 2010.
Carey Haughwout, Public Defender, and Dea Abramschmitt, 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.
DAMOORGIAN, J.
Devin Blount ("defendant") appeals his conviction for third-degree grand theft and battery. We affirm defendant's battery conviction, but reverse his grand theft conviction and remand for the trial court to adjudicate him guilty of the lesser-included offense of petit theft and resentence him accordingly.
On January 25, 2008, defendant was arrested at a retail store for the theft of a 15-inch LCD TV, a DVD player, and three pairs of Dickie pants. At trial, the store's loss-prevention officer, who detained defendant with another employee, testified that the TV's price was about "$200, $300" and the DVD player's price was about "$80." The loss-prevention officer did not testify as to the price of the three pairs of pants; however, he stated that the TV, DVD player, and pants were undamaged *663 after the incident. The investigating police officer subsequently testified, based off his probable cause affidavit, that the total of the TV, DVD player, and pants was $479.96. After the State rested, defendant moved for judgment of acquittal, contending that the State failed to present sufficient evidence regarding the value of the TV, DVD player, and pants. The trial court denied defendant's motion, finding that the State made a prima facie showing on the elements of grand theft. On appeal, defendant asserts that the trial court erred in denying his motion for judgment of acquittal because the State failed to present sufficient evidence that the TV, DVD player, and pants were valued at $300 or more.
A trial court's denial of a motion for judgment of acquittal is subject to de novo review. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). "Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence." Id. To establish grand theft, the State must prove beyond a reasonable doubt that the value of stolen property is "$300 or more, but less than $5,000." See § 812.014(2)(c)1., Fla. Stat. (2008). Evidence is generally insufficient to prove the value of stolen property is $300 or more, where the property's value is estimated. See Gilbert v. State, 817 So.2d 980, 982-83 (Fla. 4th DCA 2002).
In this case, the loss-prevention officer testified that the TV and DVD player's prices were about "$200, $300" and "$80," respectively, and did not provide a price for the three pairs of pants. The loss-prevention officer's estimates are insufficient evidence to prove the value of the TV and DVD player. See id. The investigating police officer's testimony that the TV, DVD player, and pants totaled $479.96 is also insufficient evidence of value, even when viewed in conjunction with the loss-prevention officer's testimony. The police officer did not provide any basis for the $479.96 total, such as the specific values of the TV, DVD player, and pants, or how or when the total was calculated, or who calculated it. See Evans v. State, 452 So.2d 1040, 1041 (Fla. 2d DCA 1984) (holding that the State failed to prove value for grand theft, where there was no evidence of the specific values and price tags for the stolen retail property in the defendant's possession).
Accordingly, we affirm defendant's battery conviction. However, because the State failed to prove beyond a reasonable doubt that the TV, DVD player, and pants were worth $300 or more, we reverse defendant's conviction for grand theft and remand for the trial court to adjudicate defendant guilty of the lesser-included offense of petit theft and resentence him accordingly.
Affirmed in part, Reversed in part, and Remanded.
FARMER and HAZOURI, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/231878/ | 204 F.2d 831
RUSHFORM,v.UNITED STATES.
No. 227, Docket 22641.
United States Court of Appeals Second Circuit.
Argued April 14, 1953.Decided May 28, 1953.
John R. Cummins, Plattsburg, N.Y., for appellant.
Alan S. Rosenthal, New York City, Warren E. Burger, Asst. Atty. Gen., Edmund Port, U.S. Atty., Syracuse, N.Y. Paul A. Sweeney, Department of Justice, Washington, D.C., for appellee.
Before L. HAND, AUGUSTUS N. HAND and FRANK, Circuit Judges.
PER CURIAM.
1
The plaintiff appeals from a judgment, summarily dismissing his complaint against the United States, brought under the 'federal Tort Claims Act.'1 The judgment was based solely upon the complaint and answer, together with a release granted by the plaintiff to three partners, the owners of a truck, that had caused the personal injuries for which he sued. The complaint alleged that the United States was engaged in a 'Reconversion Housing Project';2 and had employed 'a project engineer' to inspect the machinery used in its construction. The United States had let out the project by a contract with the Buffalo Borden Building Company; but had 'retained the right to supervise and interfere in the progress of the work.' The partners released were subcontractors and used on the 'Project' a 'truck crane' that was 'defective and was constituted a nuisance and was highly dangerous both in itself and in its operation'; and the 'project engineer knew * * * and was aware of the defective crane,' but 'permitted' it 'to be operated on the project and failed to have' it 'removed and barred from the project.' The plaintiff was an employee of the contractor in chief and was injured by the operation of the crane. He brought an action in the state court in New York against the three partners, which he settled for $14,000 by giving them a release 'for personal injuries and damages suffered by me on June 7, 1946, when struck by the boom of a truck crane' owned by them. The only question that we need consider is whether this was a bar to the action against the United States.
2
The 'Federal Tort Claims Act'3 gives jurisdiction to the district courts over actions for injuries caused by an employee of the United States 'under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred', and we will assume without deciding that the complaint alleged a good case under the law of New York where the claim arose. On the other hand it is the settled law of that state, following the common-law, that the release of one of several joint tort-feasors, without reserving any claim against the others, releases all.4 The plaintiff's answer to this is that, although the Act adopts the local law so far as concerns those facts that are necessary to determine whether a claim arises at all, it stops there. Transactions that may release the claim, or, we assume, may affect its continued existence in any other way, are not within the words: 'under circumstances where * * * a private person, would be liable'. We need not say whether the effect of a release, executed in another state, is to be determined by the law of that state, or by the law of the state where the claim arises, for the release at bar was executed in New York; and the plaintiff does not tell us to what law we are to look: whether to some 'general' or 'federal' law under the doctrine of Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865, or elsewhere. Nor need we seek any such umbrageous refuge; for it is plain that Congress meant to make the proper state law in all respects the model for the liabilities it consented to accept; and that the 'circumstances' included as much those facts that would release a liability once arisen, as those on which its creation depended. Since the release was executed in New York, it is the law of that state that controls.
3
Judgment affirmed.
1
Secs. 1346, 2671 et seq., Title 28, U.S.C
2
Sec. 1521 et seq., Title 42, U.S.C.A
3
Sec. 1346(b), Title 28, U.S.C
4
Barrett v. Third Avenue R.R. Co., 45 N.Y. 628; Milks v. McIver, 264 N.Y. 267, 190 N.E. 487 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/484980/ | 814 F.2d 277
Ralph E. NISHIYAMA and wife, Gabrielene Nishiyama, assurviving parents and next-of-kin of Kathy JaneNishiyama, Plaintiffs-Appellants,v.DICKSON COUNTY, TENNESSEE, a political subdivision of theState of Tennessee, Dowell (Doyle) Wall andCarroll Fiser, Defendants-Appellees.
No. 83-5683.
United States Court of Appeals,Sixth Circuit.
Argued June 4, 1986.Decided March 18, 1987.
Richard H. Batson, Daniel, Harvill, Batson & Nolan, Clarksville, Tenn., John Conners, Jr., Kenneth H. King, Jr. (argued), Boult, Cummings, Conners & Berry, Nashville, Tenn., for plaintiffs-appellants.
Douglas Fisher, Wall & Fizer, Mary Martin Schaffner (argued), R.B. Parker, Jr. (Dickson County), Nashville, Tenn., Connie Jones (argued), for defendants-appellees.
Before LIVELY, Chief Judge, and ENGEL, KEITH, MERRITT, KENNEDY, MARTIN, JONES, CONTIE,* KRUPANSKY, WELLFORD, GUY, NELSON, RYAN and BOGGS, Circuit Judges.
BOYCE F. MARTIN, Jr., Circuit Judge.
1
Ralph and Gabrielene Nishiyama, brought this action under 42 U.S.C. Sec. 1983 against Dickson County, Tennessee, Sheriff Doyle Wall and Deputy Sheriff Carroll Fiser as well as Dickson County. The Nishiyamas allege the sheriffs' policy and practice of entrusting fully-equipped official patrol cars to inmate Charles Hartman, a convicted felon, deprived their daughter Kathy of her life without due process of law. Hartman was allegedly cruising alone in a patrol car when he stopped and then murdered Kathy Nishiyama. The district court dismissed the Nishiyamas' complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
2
A three-judge panel of this Court initially affirmed the district court's order, but on reconsideration, the same panel reversed that decision, 779 F.2d 52. On motion, a majority of the judges in active service voted to rehear the case en banc, thus vacating the panel opinion and the previous opinion of the Court. Rule 14, Rules of the Sixth Circuit.Following supplemental briefing the case was argued before the full Court.
3
A motion under Rule 12(b)(6) tests whether a claim has been adequately stated in the complaint. The basic requirements for a pleading are set out in Rule 8(a) and call for "a short and plain statement of the claim showing that the pleader is entitled to relief...." In considering a Rule 12(b)(6) motion, the court must accept as true all factual allegations in the complaint. Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir.1983), cert. denied, 469 U.S. 826, 105 S.Ct. 105, 83 L.Ed.2d 50 (1984). The court must deny the motion to dismiss unless it can be established beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Id.; Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).
4
The facts that we must accept as true, as alleged by the Nishiyamas, are that at about 8:30 p.m. on November 16, 1981, Kathy Nishiyama was driving on Lafayette Road in Montgomery County, Tennessee. She responded to the signals of a Dickson County Sheriff's Department patrol car that directed her to pull over to the side of the road. When she did, Charles Hartman, the patrol car's sole occupant, approached her and beat her to death.
5
Hartman, a convicted felon and an inmate in the custody of the Dickson County Sheriff's Department, was operating the patrol car with the permission and authorization of defendants Sheriff Doyle Wall and Deputy Sheriff Carroll Fiser. These defendants had placed Hartman on "trusty" status following his transfer from state custody to the Dickson County Jail. They were also on notice that Hartman was dangerous and had assaulted a young woman in the past.
6
Sheriff Wall and Deputy Sheriff Fiser had a policy and practice of several months standing which allowed Hartman to have unsupervised use of Dickson County patrol cars equipped with standard blue flashing lights and official identifying markings. Hartman used the cars to perform official and personal tasks for the two officers and personal tasks for himself. A Dickson County grand jury eventually investigated this policy and recommended that it cease.
7
On the night of the murder, Hartman drove Deputy Fiser from the jail to Fiser's farm. After arriving, Fiser told Hartman to drive the fully-equipped and clearly marked patrol car back to the jail. From this point onward, he had full unsupervised possession of the car. He then began roaming the highways of Dickson, Houston, and Montgomery Counties, and stopped several motorists by flashing the patrol car's blue lights. When Montgomery County officials learned that a Dickson County Sheriff's car was stopping motorists in their county, they notified the Dickson County dispatcher, who in turn notified Wall and Fiser. Wall and Fiser did nothing. Not until ten hours after he had left the jail did Hartman finally return. The Nishiyamas contend that during the interim he used the patrol car, a clear instrument of law enforcement, to pull over their daughter's car and murder her. They further contend that Wall and Fiser's policy of allowing Hartman unsupervised use of an official patrol car and their actions in accordance with that policy were grossly negligent and proximately caused Kathy Nishiyama's death.
8
In order to sustain a claim under section 1983, the plaintiffs must satisfy the following requirements: 1) the conduct at issue must have been under color of state law; 2) the conduct must have caused a deprivation of constitutional rights; and 3) the deprivation must have occurred without due process of law. See Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). After careful review of the claims and assuming the facts as alleged to be true, we hold that the Nishiyamas have successfully stated a claim as required by Rule 8(a) of the Federal Rules of Civil Procedure and that their complaint was improperly dismissed as a matter of law under Rule 12(b)(6).
9
In considering the first prong of the test, the district court correctly concluded that the defendants' practice of providing Hartman with a marked and fully-equipped patrol car was action taken under color of state law. The sole issues left for our consideration then are whether the conduct of the defendants caused a deprivation of Kathy Nishiyama's constitutional rights and if so, whether this deprivation occurred without due process of law.
10
Kathy Nishiyama's interest in preserving her life is one of constitutional dimension. While the fourteenth amendment does not guarantee life, it guarantees that the state cannot deprive an individual of life without due process. First we consider whether the state deprived Kathy Nishiyama of her life by the conduct of its agents.
11
The Supreme Court in recent years has considered the limits of liability of government officials under section 1983 for a murder committed by someone other than a government official. In Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980), the plaintiffs sought to hold California parole officers liable under section 1983 for the parole board's decision to release a parolee, who five months later murdered plaintiffs' daughter. The Court concluded that the plaintiffs had failed to state a claim. In determining the issue of proximate cause, the Court emphasized three factors: 1) the parolee was in no sense an agent of the parole board; 2) the parole board had no reason to know that the decedent, as distinguished from the public at large, faced any special danger; and 3) the death was too remote a consequence to hold the parole board responsible under the federal civil rights law. Id. at 285, 100 S.Ct. at 559. On similar facts this Court held in Janan v. Trammell, 785 F.2d 557 (6th Cir.1986), that the death of Paul Janan at the hand of a parolee within eight weeks of his release was too remote to support a claim against the parole board under section 1983. The Nishiyamas' claims present a different framework from the situations presented in Martinez and Janan; an analysis of the factors to be considered when determining proximate cause will illustrate why Martinez does not govern the current action and why we decide today that there is an arguable claim that the state deprived Kathy Nishiyama of her constitutional interest in life.
12
Unlike the released parolees in Martinez and Janan, Hartman remained in the custody of the Dickson County Sheriff's Department before, during, and after the murder. There is no indication that Hartman ever attempted to flee this custody. During Hartman's ten-hour journey from Fiser's farm to the Dickson County Jail, the defendants never reported or otherwise treated him as an escapee. In accordance with established practice, Wall and Fiser authorized Hartman to use and have sole control over the patrol car for his own private purposes. This custodial relationship between Hartman and the Dickson County Sheriffs supports a finding that Wall and Fiser had the power and authority to direct Hartman's actions in a way that was absent in Martinez and Janan.
13
Further, unlike Martinez and Janan, the Nishiyamas claim that Wall and Fiser should have known that their practice of allowing Hartman to have unsupervised use of the patrol car made motorists like Kathy Nishiyama particularly vulnerable to potentially dangerous situations. This is not a case like Martinez where the parolee had been out of police custody for several months and thus the identity of potential victims was difficult to define. Here the radius of harm is more distinct. When Fiser and Wall allowed Hartman to drive unescorted between the jail and Fiser's farm, persons in the vicinity were at risk, particularly motorists who out of respect for and fear of law enforcement vehicles respond to blue flashing lights. The identification of potential victims became even easier once the sheriff's department was notified that its patrol car was stopping motorists in Montgomery County. The defendants should have known that Hartman was stopping unwitting motorists under the aura of law enforcement represented by the patrol car and that, as a result, drivers like Kathy Nishiyama in Montgomery and surrounding counties were in jeopardy.
14
In final contrast, the death of Kathy Nishiyama cannot be viewed as so remote a consequence of the defendants' actions as to automatically preclude liability under section 1983. Through their established practice of entrusting the police car to Hartman, Wall and Fiser set in motion the specific forces that allowed him to commit his crime. They apparently saw no need to respond to the dispatcher's report alerting them to the possibility that Hartman was using the Dickson County patrol car to stop vehicles travelling the roads of Montgomery County. These subsequent failures to act extended Hartman's opportunity. Neither on that night nor on any other occasion did they do anything to stop or disavow Hartman's use of the patrol car for his private purposes. Because of this practice of the sheriff's department, Hartman was able to use the apparent authority of the patrol car to direct Kathy Nishiyama to stop several blocks from her home and thus become his victim.
15
None of the cases following Martinez contains a similarly close relationship between the criminal acts and the defendants' acts under color of state law. See Jones v. Phyfer, 761 F.2d 642 (11th Cir.1985) (no special relationship between rape victim and state employees who released rapist); Fox v. Custis, 712 F.2d 84 (4th Cir.1983) (no constitutional duty to protect general public from random criminal violence absent a special relationship); Humann v. Wilson, 696 F.2d 783 (10th Cir.1983) (victim's rape too remote a consequence of state's decision to transfer inmate from jail to minimum security facility to sustain civil rights claim); Wright v. City of Ozark, 715 F.2d 1513 (11th Cir.1983) (rapist had no relationship with city officials who allegedly suppressed information concerning prior rapes in the city); and Bowers v. DeVito, 686 F.2d 616 (7th Cir.1982) (mental health officials not responsible for subsequent criminal acts of mental patient released from their care). In these cases the state officers possessed information that circumstances endangering the public existed. Yet in none of the cases did the state officers by their acts facilitate the crime by providing the criminal with the necessary means and the specific opportunity to commit his crime. In Martinez and Janan, the only action of the state officers was their decision to release from custody the person who subsequently committed murder. In the present case, the officers gave Hartman the car and the freedom to commit the crime.
16
In sum, accepting all of the allegations of the Nishiyamas as true, we hold that the Nishiyamas have established a claim that the defendants' conduct under color of state law deprived Kathy Nishiyama of a constitutionally-protected interest in life. We next consider whether the deprivation occurred without due process of law.
17
In Wilson v. Beebe, 770 F.2d 578, 583 (6th Cir.1985), this Court recognized that section 1983 provides a remedy for both procedural and substantive due process violations, and the Supreme Court made clear in Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986), that there are certain types of government acts that violate the Due Process Clause regardless of the procedures used to implement them. When the government engages in such conduct, there is a remedy under section 1983. The Due Process Clause forbids these actions in order to prevent "governmental power from being 'used for purposes of oppression.' " Daniels, 106 S.Ct. at 665 (quoting Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. (59 U.S.) 272, 277, 15 L.Ed. 372 (1856)). Whether dealing with procedural or substantive due process, "[t]he touchstone ... is protection of the individual against arbitrary action of government." Daniels, 106 S.Ct. at 665 (quoting Dent v. West Virginia, 129 U.S. 114, 123, 9 S.Ct. 231, 233, 32 L.Ed. 623 (1889)).
18
The Nishiyamas allege that the defendants' gross negligence resulted in a violation of substantive due process. We must address therefore whether such conduct is a sufficient basis for a substantive due process violation.
19
The Supreme Court recently decided the question of whether mere negligence provides a basis for a claim under section 1983. In Daniels, 106 S.Ct. at 663, the Court held that due process "is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty or property." (Emphasis in original.) This conclusion is based on the premise that simple negligent conduct does not constitute a "deprivation" within the meaning of the term in the Due Process Clause. Id. at 665. The Court found no occasion, however, to consider "whether something less than intentional conduct, such as recklessness or 'gross negligence,' is enough to trigger the protections of the Due Process Clause." Id. at 667 n. 3.
20
Similarly, this Court has not previously decided the question of whether something less than an intentional act but more than simple negligence might invoke due process protection. In Wilson v. Beebe, 770 F.2d at 586, this Court held that the mere negligence of a state police officer who wounded an arrestee while trying to handcuff him did not constitute a substantive due process violation of the type described in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1951) (pumping suspect's stomach to recover physical evidence "shocks the conscience") and Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973) (unjustified attack on suspect by police officers violated due process).
21
In Janan v. Trammell, 785 F.2d at 558, the plaintiffs alleged gross negligence in their complaint against the parole board. However, in that case, we declined to deal with the relationship between varying degrees of negligence and possible due process violations. Relying on the ruling in Martinez, we held that Janan's death was too remote a consequence to sustain an action under section 1983. Specifically, we left unresolved the question of whether the actions of the parole officers constituted a degree of negligence akin to the "mere negligence" of Daniels, and therefore precluded a due process cause of action, or something greater.
22
We believe that the allegation in the present complaint of gross negligence on the part of the defendants was sufficient to charge them with arbitrary use of government power. The complaint also pled that the result of this abuse of power was the death of Kathy Nishiyama. These allegations are sufficient to state a claim for a substantive due process violation that would withstand a motion to dismiss.
23
We acknowledge that the term "gross negligence" evades easy definition. In our view, a person may be said to act in such a way as to trigger a section 1983 claim if he intentionally does something unreasonable with disregard to a known risk or a risk so obvious that he must be assumed to have been aware of it, and of a magnitude such that it is highly probable that harm will follow. The defendants in this case intentionally gave Hartman full unsupervised use of the officially marked and equipped patrol car. After they were notified that one of their patrol cars was stopping motorists in Montgomery County they intentionally failed even to investigate, much less attempt to recall Hartman to the jail.
24
The defendants should have appreciated the risk of permitting Hartman to have unsupervised use of the Dickson County Sheriff's car. After they learned their patrol car was being used to stop motorists, the risk ceased to be speculative. Undeniably, there was a high probability of harm resulting from the fact that Hartman, a convicted felon entrusted to their custody, was allowed unsupervised use of an official patrol car. This is tragically underscored by the harm that eventually befell Kathy Nishiyama.
25
The wanton disregard on the part of the defendants amounted to more than mere thoughtlessness. The defendants continued the practice of giving trusties use of patrol cars even after the murder. Only on the recommendation of the grand jury did the custom of the sheriff's department end. The defendants' actions cannot be attributed to simple inattention or carelessness. Rather, the defendants consciously established a policy of allowing trusties to have use of official patrol cars with a seeming indifference to the consequences. The defendants consciously and voluntarily failed to respond to the danger presented by Hartman's use of the car to stop motorists. We hold that such reckless indifference to the risk posed by their actions is sufficient to establish a violation of substantive due process under section 1983. It is particularly troubling when persons charged with ensuring public peace and order engender peril as a result of their outrageous conduct.
26
Viewing the facts alleged as true as we must under Rule 12(b)(6), the defendants' conduct is the type of governmental action which is inherently impermissible. We hold that the Nishiyamas' allegations establish a claim. As to the specific liability of Dickson County itself, we leave that decision to the district court which did not reach that particular issue before.
27
The judgment of the district court is reversed.
WELLFORD, Circuit Judge, dissenting:
I. Factual Background
28
This is a tragic case involving a brutal murder of a young woman by an inmate of a county jail in Tennessee, who was permitted by a deputy sheriff at the time to drive alone an official county patrol vehicle.
29
Plaintiffs, Ralph and Gabrielene Nishiyama, of Montgomery County, Tennessee, allege violations of 42 U.S.C. Secs. 1983 and 1985(3), and assert a pendent state claim for wrongful death in the murder of their daughter by an inmate1 of the Dickson County, Tennessee jail. In September, 1983, the trial court entered a memorandum and order granting defendants' motion to dismiss. The Nishiyamas appeal only the dismissal of their Sec. 1983 action for failure to state a claim upon which relief could be granted.
30
In the context of a motion to dismiss for failure to state a claim on which relief could be granted, the court treats the facts alleged in the complaint as true. Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir.1983), cert. denied, 469 U.S. 826, 105 S.Ct. 105, 83 L.Ed.2d 50 (1984). On November 16, 1981, shortly after leaving a friend's home around 8:30 p.m., Kathy Jane Nishiyama, in response to the signals of a Dickson County Sheriff's Department patrol car, pulled to the side of the road. Charles Edward Hartman, a convicted felon, who was treated as a "Trusty" of the Dickson County Jail, driving alone the patrol car, approached Kathy Nishiyama and beat her to death, leaving her body in a remote area.
31
Hartman was then serving the balance of his Tennessee state imposed sentence for burglary in the custody of the Dickson County Sheriff's Department. The district court found that the Tennessee statute under which Hartman was apparently transferred from the state to the Dickson County Jail permits only nondangerous felons to be so assigned. The Nishiyamas allege that the defendants knew or should have known that Hartman was dangerous and allege further that he had assaulted a young woman in the past.
32
Sheriff Wall placed Hartman on trusty status. It was alleged that defendants Wall and Fiser adopted a policy of allowing Hartman to have unsupervised use of Dickson County patrol cars to conduct official tasks for them, and to perform tasks for their personal benefit and for his own benefit. The Nishiyamas allege that this policy had been in effect before the time of the murder. The Nishiyamas, however, do not challenge the Tennessee trusty system in general, only the negligent failure of Wall and Fiser to undertake "reasonable standards" in connection therewith.2 On the night of the murder, Deputy Fiser instructed Hartman to drive him to his farm. Upon arriving at his farm, Fiser turned sole possession of the fully equipped and plainly marked patrol car over to Hartman.3
33
After leaving Fiser's farm, Hartman apparently proceeded to prowl the highways of Dickson, and adjacent Houston and Montgomery counties. He was allegedly absent for a number of hours. He accosted and stopped several motorists by flashing the patrol car's blue lights. Montgomery County officials learned that a Dickson County Sheriff's car was stopping motorists in their county under suspicious circumstances. At some unspecified time during the evening hours, they notified the Dickson County dispatcher in the sheriff's office, who allegedly notified Wall and Fiser thereafter, but the time of notification is also not indicated in the complaint. Wall and Fiser allegedly did nothing after they were notified about this activity. Plaintiffs allege that Wall and Fiser's policy of placing Hartman on trusty status and allowing him unsupervised use of an official patrol car amounted to "negligence of the grossest type," which proximately brought about their daughter's death.
II. The District Court's Decision
34
The district court conceded that the decision to make Hartman a "trusty" and to give him unsupervised use of the patrol car was a decision made or conduct undertaken under "color of state law by a person or persons acting in an official capacity." This finding, however, does not end the "color of state law" analysis. In order to state a claim under Sec. 1983, the district court held, in effect, that the plaintiff must assert that the conduct under color of state law caused or directly brought about, as a foreseeable consequence, a deprivation of plaintiff's constitutional rights. Further, the district court held that the plaintiff must aver that the alleged deprivation of constitutional right occurred without due process of law.
35
The district court reasoned that Hartman's unauthorized action and assault resulting in a "random murder ... were not under color of law of the sheriff or his deputy. Hartman's individual actions cannot be characterized as official actions." In summary and conclusion, the district court stated that "the plaintiffs have failed to allege a constitutional deprivation of rights." The district court concluded, furthermore, that although the alleged decision to grant Hartman "a limited liberty interest" in use of the patrol car was one made under color of state law, his actual terrible misuse of the car in furtherance of a criminal design did not constitute an action which could be attributed to any of the defendants; the court found "no allegation of fact indicating that any official approved or knowingly acquiesced in the conduct of Hartman," and thus there was "no deprivation of a constitutional right." In addition, the court concluded that "the alleged misuse of the 'trusty system' was not so egregious as to infer a deprivation of constitutional rights ... [there was] no alleged malice, but only negligence and possible recklessness." The district court thus differentiated the negligent or reckless action of the county sheriff and his deputy from the willful and malicious action of the county officials in Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), a criminal civil rights violation prosecution.
36
In addition to finding no deprivation of a constitutional right within the meaning of the civil rights statutes involved, the district judge found no violation of procedural due process within the meaning of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). (The rationale of Parratt, concerning a property interest, was later held in Wilson v. Beebe, 770 F.2d 578 (6th Cir.1985) (en banc) to apply also to deprivation of liberty interest.)
III. County Liability
A. Respondeat Superior
37
Dickson County is not liable to plaintiffs on the basis of respondeat superior for the actions of its agents or employees even if they involve violations of a constitutional right. City of Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985); Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). To put it another way, Dickson County may be held accountable for the actions of its agents or employees only if the deprivation was the result of municipal "custom" or "policy". City of Oklahoma City, 471 U.S. at 818, 105 S.Ct. at 2433; see also Monell, 463 U.S. at 694, 98 S.Ct. at 2037. The county then, is liable only for its own independent actions in the form of policymaking, not merely as employer for the negligent or reckless acts of its employees or agents. For Dickson County to be liable, the policy of the county in this case must be alleged proximately to have subjected Kathy Nishiyama to a deprivation of her constitutional rights. Bennett v. City of Slidell, 728 F.2d 762 (5th Cir.) (en banc), reh'g den., 735 F.2d 861 (5th Cir.1984), cert. denied, 472 U.S. 1016, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985). It is not enough that Deputy Sheriff Fiser, through gross negligence, permitted a prisoner trusty to use the county patrol car assigned to him, and that the trusty then committed a random act of murder against a citizen of another county.4 Plaintiffs have not alleged any harm to other citizens by reason of alleged prior similar actions on the part of Wall and/or Fiser. Nor have plaintiffs alleged that the county had a policy of failing to investigate promptly official reports from another county about any unusual conduct of a person operating a Dickson County patrol vehicle.
B. County Negligence or Knowledge
38
Recognizing the authority cited above, the complaint does not allege that Dickson County is liable as employer of Wall or Fiser. Rather, it asserts that the county was "negligent" in that it had "actual knowledge or should have known of the pre-existing prior pattern of wrongful conduct of the sheriff ... in permitting the said Hartman to have free and unobstructed use of patrol cars on prior occasions." The complaint does not say that the county court or that a county executive or official permitted the unsupervised use by a "trusty" of the patrol car; rather it says, in effect, that such responsible county authorities, who set county policy, knew or should have known that the sheriff and his deputy were allegedly permitting this activity through their negligence or "wrongful conduct."
39
If the county officials did not know about the alleged actions of Wall and Fiser in allowing a jail inmate the use of a patrol car, then, of course, the county was merely negligent in failing to discover a course of action by the sheriff's office that could lead to prisoner escape or other detrimental results or activity. Despite the allegation that Kathy Jane Nishiyama's wrongful death was "reasonably foreseeable" as a consequence of this negligence, this negligence may not have been the proximate cause of harm and death to a citizen of another county. The Supreme Court noted very recently in Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986), that "in Daniels we held that the Due Process Clause of the Fourteenth Amendment is not implicated by the lack of due care of an official causing unintended injury to life, liberty or property." --- U.S. at ----, 106 S.Ct. at 670 (emphasis added) (citing Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)).
40
If the county officials knew about and did not act to stop the sheriff's conduct in allowing Hartman's use of the patrol car, then the degree of negligence in allowing this action to continue may be greater than mere ignorance or a failure to discover; again, however, alleged knowledge by county officials of the sheriff's course of action in allowing the prisoner to be entrusted with a patrol car does not mean that the murder of the young victim was a foreseeable and intended or proximate consequence. Neither ignorance of the sheriff's alleged policy, nor knowledge of, nor acquiescence in, this alleged course of conduct by the sheriff and his deputy amount to any intentional or willful action by the county to harm plaintiffs or anyone else, or to deprive Nishiyama of her life. Daniels, 106 S.Ct. 662, Davidson, 106 S.Ct. 668. We have recently held that a Sec. 1983 violation of substantive due process by reason of alleged reckless and/or negligent conduct of a law enforcement officer requires intentional action. Wilson v. Beebe, 770 F.2d 578 (6th Cir.1985) (en banc).
41
Even if the negligent act involved here on the part of the county were an official act or sanction which "shocks the conscience," so long as it was not intentional nor an official county policy intended to be directed against a specific individual, it is not actionable against the county. Wilson v. Beebe, 770 F.2d at 586; see also Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). Section 1983 does not impose liability for violations of duties that arise out of tort law. Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979); Wilson, 770 F.2d at 582.
42
We would not in this instance conclude that the county's action or failure to act was conduct that shocks the conscience. "[W]here a government official is merely negligent in causing the injury, no procedure for compensation is constitutionally required." Davidson, 106 S.Ct. at 670. (emphasis added). Hartman was not an agent of the defendant county, as the district court determined, and it is not his conduct that we examine.
43
Nor is it enough, in our view, that plaintiffs have alleged that defendants' negligence (even if characterized as gross negligence) caused the "reasonably foreseeable" death of Kathy Nishiyama, if the consequence of the grossly negligent action was remote as a matter of law, intended by inference or otherwise. In Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980), the Court assumed, as the complaint alleged, that defendant parole officials in a Sec. 1983 action "knew, or should have known, that the release of Thomas [the murderer of plaintiff's decedent] created a clear and present danger that such an incident would occur." Id. at 280, 100 S.Ct. at 556. The Court unanimously held, nevertheless, that the complaint stated no constitutional cause of action despite plaintiff's characterization of defendants' actions as "reckless, willful, wanton and malicious" in releasing a convicted rapist and "Mentally Disoriented Sex Offender," for whom the convicting court recommended no parole. Id. at 279, 280, 100 S.Ct. at 556. The Court concluded without dissent that regardless of whether defendants had committed a tort that "proximately caused [the victim's] death," the action by the parolee was not state action as a matter of law and defendants "did not 'deprive' appellants' decedent of life within the meaning of the Fourteenth Amendment." Id. at 285, 100 S.Ct. at 559. Martinez governs the issue of the county's duty towards Nishiyama and the issue of whether Hartman's action was state action.5 We do not in so concluding the disposition of this issue minimize the characterization of gross or reckless conduct on the part of Wall and Fiser. We find no meaningful distinction in principle between the behavior of defendants here and the parole officials' action in Martinez, which was performed in the course of official duty and directed towards one then in a custodial relationship to defendants.
44
Furthermore, in Martinez,6 the Court did not portray as merely incidental the additional consideration that the parole board was not aware that the parolee Thomas' release created a special danger to the victim Martinez. Similarly, plaintiffs here do not allege that Hartman posed a particular danger to Kathy Nishiyama that was distinct from the dangers he posed to the general public. We conclude, moreover, that plaintiffs have not established a reasoned basis for treating as controlling and significant the brief period during which Hartman was at large in comparison to the several months period parolee Thomas was at large in Martinez.
45
The remoteness discussed in Martinez was not simply a matter of time. Other factors were mentioned. For example, the Court observed that a parolee is in no sense an agent of the state in choosing to commit a crime.... Also, the court considered the fact that the plaintiffs' decedent did not stand in any special relationship to the parolee from which the parole officers may have inferred a special danger to her.
46
Humann v. Wilson, 696 F.2d 783, 784 (10th Cir.1983) (citations omitted). The actions of Wall and Fiser here burdened the public in general with a risk of harm while Hartman was released as a trusty for a number of hours; the actions of the Martinez defendants burdened the public at large immediately and for many months with a risk of harm in the release of a known dangerous offender from custody. While it may be true that persons in the vicinity, more likely motorists than others, were placed at greater risk, Kathy Nishiyama was one of many in Dickson County or surrounding counties who might have been a potential victim; she was not more particularly or personally placed at risk than were the individual victims in Martinez. See also Janan v. Trammell, 785 F.2d 557 (6th Cir.1986).
47
The county, in all events, would not be liable by reason even of its alleged grossly negligent oversight with respect to Hartman's acts. See Fox v. Custis, 712 F.2d 84 (4th Cir.1983) (parolee, negligently not taken into custody, within a few days murdered a young woman; held no cause of action under Sec. 1983 against officials).7 See also Jones v. Phyfer, 761 F.2d 642 (11th Cir.1985) (even shorter time span between an inmate's release from custody and rape of a nearby victim, yet a similar determination of no Sec. 1983 liability). In sum, no "special relationship" existed between the state and the victim of a random murder committed by one who was, or should have been, held in restraint or custody by the state.
48
The Nishiyamas cite case authority as support for the proposition that either "sufficiently egregious" official action, or omissions amounting to "deliberate indifference" by state officials will create a constitutional deprivation which satisfied Sec. 1983. In each case cited, however, including one from this court, Fitzke v. Shappell, 468 F.2d 1072 (6th Cir.1972), the state had singled out the victim from the general population and had created a special vulnerability distinct from that of the general public. See, e.g., Brandon v. Holt, 469 U.S. 464, 105 S.Ct. 873, 83 L.Ed.2d 878. The victim was either a prisoner in state custody or being subjected to arrest by state officials. Officers of the state themselves, as in Brandon v. Holt and Fitzke, or a fellow prisoner violated the victim's rights. The Nishiyamas have not demonstrated that the state or agents of the county similarly singled out their daughter or that these defendants had any special relationship with her. Therefore this claimed authority does not support plaintiffs' assertion of a cause of action under Sec. 1983.
49
No basis exists for any finding under the assertions of the complaint that after Fiser "released" Hartman, even temporarily, that he could be considered in a different category from those offenders released in Martinez and therefore, somehow found to be within Wall and Fiser's (or the county's) continuing power to direct or control Hartman's actions in his random and murderous activity after temporary release. That Hartman may have been released without supervision for a time, through gross negligent entrustment of a highway patrol vehicle, does not support plaintiffs' argument that this rendered Hartman the agent of any defendant, especially in the commission of a random murder. Nor does Hartman's return after committing the crime make him an agent of Wall and Fiser.
50
C. No State Duty to Protect Member of Public
51
Courts have consistently refused to recognize a duty on the part of the state, or a constitutional right of citizens to expect from the state, that it protect individual members of the public from random acts of violence. See, e.g., Beard v. O'Neal, 728 F.2d 894, 900 (7th Cir.) (holding that even when an FBI informant accompanied a murderer of plaintiff's brother no constitutional cause of action was asserted against FBI supervisors because "no special relationship" between the parties gave rise to a constitutional duty to provide protection), cert. denied, 469 U.S. 825, 105 S.Ct. 104, 83 L.Ed.2d 48 (1984); Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982) (holding: "[T]here is no constitutional right to be protected by the state against being murdered by criminals or madmen."). The Eleventh Circuit has noted:
52
Regardless whether the cases speak in terms of lack of duty or lack of causation, the result is the same: generally, the due process clause of the Constitution does not protect a member of the public at large from the criminal acts of a third person, even if the state was remiss in allowing the third person to be in a position in which he might cause harm to a member of the public, at least in the absence of a special relationship between the victim and the criminal or between the victim and the state.
53
Wright v. City of Ozark, 715 F.2d 1513, 1515 (11th Cir.1983).
54
Finally, this court in Janan v. Trammell, 785 F.2d 557 (6th Cir.1986) has recently endorsed the interpretation herein attributed to the many cases from other circuits that have followed Martinez in circumstances analogous to those in the instant case. A substantially smaller amount of time lapsed in Janan between the Tennessee state officials' alleged grossly negligent release on parole of a known violent offender, who continued to make threats against the lives of others, and his random murder of plaintiff's decedent. The Janan court, nonetheless, considered Martinez, despite its longer time gap, to be controlling and affirmed a Rule 12(b)(6) judgment of dismissal of plaintiffs Sec. 1983 claim:
55
We decline to place such weight on the temporal factor. Rather, the proper analysis is whether a special relationship exists between the criminal and the victim or between the victim and the state or whether there is some showing that the victim, as distinguished from the public at large, faces a special danger by the parolee's release. In so holding, we follow other circuits that have held that absent a special relationship between the criminal and the victim or the victim and the state, no due process violation can occur. Jones v. Phyfer, 761 F.2d 642 (11th Cir.1985); Fox v. Custis, 712 F.2d 84 (4th Cir.1983); Humann v. Wilson, 696 F.2d 783 (10th Cir.1983); Bowers v. DeVito, 686 F.2d 616 (7th Cir.1982).
56
As the Seventh Circuit stated in Bowers, "there is no constitutional right to be protected by the state against being murdered by criminals or madmen." Bowers, 686 F.2d at 618.
57
785 F.2d at 560 (emphasis added).
58
There is no basis for this court to depart from Judge Martin's considered rationale, so recently stated in Janan, that absent an allegation of a "special relationship ... between the criminal and the victim or between the victim and the state," in this kind of situation, tragic as it is, no constitutional or Sec. 1983 cause of action is stated. This is so particularly when it is clear and uncontroverted that the unfortunate victim was in the same status as the public at large (or the motorists using the highways generally) potentially subject to a random murder. Gross negligence was charged in Janan just as it was charged in this case, and, as a consequence, the plaintiffs alleged in Janan that a wrongful death occurred as plaintiffs have alleged here. In Janan, the plaintiffs alleged that defendant state officials knew that the risk of allowing the violence-prone parolee, who was making threats against the family of a police officer, was an obvious risk, and it could certainly be inferred that it was probable that serious injury or death might follow. Here, plaintiffs assert that the county and individual defendants knew or should have known of a similar risk. Although the acts of the defendants in the instant case might be classified as "more unreasonable" than those in Janan, the basic issues are the same; Martinez and its progeny, especially Janan, compel a conclusion that plaintiffs have failed to state a cause of action against the county. The county had no constitutional duty to protect Nishiyama and she had no constitutional "right" to be protected from an assault by Hartman. Holding the county liable under this claim would "ignore the fundamental requirement that there be a causal connection between the action or inaction on the part of the municipality and the constitutional wrongs visited on the plaintiff," Landrigan v. City of Warwick, 628 F.2d 736, 747 n. 7 (1st Cir.1980), even if plaintiffs had established a constitutional deprivation on the part of any defendant. In this respect, we would affirm the district court in its judgment for Dickson County.
IV. Claims Against Wall and Fiser
A. Wall
59
Essentially for the reasons stated in some detail in considering whether plaintiffs have stated a constitutional claim against Dickson County, we do not believe that a cause of action has been stated against Sheriff Wall. He also stands in the position of the employer of deputy Fiser and would not be liable under Sec. 1983 on the basis of respondeat superior. He could be liable only for his own personal involvement, if any, in the alleged deprivation of Kathy Nishiyama's constitutional rights. Wall is sued in his official capacity and thus stands in the same posture as the county. Brandon v. Holt, 469 U.S. at 472, 105 S.Ct. at 879.
60
Conceding, as alleged in the complaint, that Sheriff Wall knew and followed a course of conduct that permitted trusty Hartman unsupervised use of county patrol cars, the reasoning of Martinez and Janan (and the cases cited therein) preclude a determination of liability against him. No special relationship was alleged.
61
Plaintiffs raised no allegation of any intended consequence of defendant Wall's actions directed against Kathy Nishiyama in particular. She was not in any way subject to state control, nor in Wall's custody at the time she was murdered. We would therefore affirm the judgment for Sheriff Wall despite giving plaintiffs the full benefit of the allegations of the complaint against him.B. Fiser
62
Unlike the other defendants, Fiser is charged with actually turning over the unsupervised use of the patrol car to Hartman knowing his background and propensity. We must, therefore, assume for purposes of this motion that he intentionally gave over the car to one in his personal custody while acting under color of state law. The intentional act of turning over a highway patrol car to an inmate trusty pursuant to an alleged grossly negligent policy of the sheriff's office does not indicate that any defendant, including Fiser, had any intention nor any malicious attitude towards Nishiyama, who in turn bore no special relationship to any defendant nor to Hartman the offender. Wilson v. Beebe concluded that conduct characterized as "reckless," but which was not intentionally directed towards a victim in custody, was insufficient to establish a constitutional due process claim. 770 F.2d at 586. Courts have historically required deliberate conduct to subject a state actor to a substantive due process claim under Sec. 1983 for deprivation of life. Daniels v. Williams, 106 S.Ct. at 665. The reference in Daniels to Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), and to Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. (59 U.S.) 272 (1856), refers to situations in which law enforcement personnel take direct and deliberate action against a specifically targeted individual resulting in loss of life, liberty, or property. That kind of action is not at issue, even with respect to defendant Fiser, with regard to the claims of a constitutional right to protection from random criminal conduct by one not acting under color of law. There is simply no authority recognizing that a claim of the kind asserted by plaintiffs here represents a cognizable constitutional cause of action,8 or a Sec. 1983 claim against Fiser despite the egregiously thoughtless character of his action.
63
We would therefore affirm the action of the district court as to all defendants.
*
Honorable Leroy J. Contie took senior status on July 1, 1986
1
Inmate Hartman has since been found guilty of this murder and sentenced to death in Tennessee state courts. See State of Tennessee v. Hartman, 703 S.W.2d 106 (Tenn.1985), cert. denied, --- U.S. ----, 106 S.Ct. 3306, 92 L.Ed.2d 721 (1986)
2
It is claimed, in particular, that Sheriff Wall and his deputy "failed to establish appropriate and reasonable standards and criteria for the determination and designation of a 'trusty' status ... they wrongfully permitted the said HARTMAN to be given a 'trust status'...."
3
Plaintiffs alleged that Fiser "with the knowledge, consent and authority" of Wall, "acting in their official capacities," allowed Hartman to drive the car alone
4
In Brandon v. Holt, 469 U.S. 464, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985), the City of Memphis was held liable for its Police Director's policies in retaining over a lengthy period, without adequate means of review, a police officer characterized as frequently abusive and a "mental case" who injured the persons he took into custody. Brandon, 469 U.S. at 466 n. 4, 105 S.Ct. at 875 n. 4. We perceive a distinction between the circumstances in Brandon and in the actions of the sheriff here and his deputy; the wrongful assailant in Brandon was the police officer himself, acting purportedly as a police officer at the time. Brandon reserved the question whether the injury was caused by the kind of "policy or custom" that "may be fairly said to represent official policy." 469 U.S. at 473 n. 25, 105 S.Ct. at 879, n. 25
5
The offender in Martinez was determined to be "in no sense an agent of the parole board." 444 U.S. at 285, 100 S.Ct. at 559. Neither can Hartman be deemed to be the agent of defendants here
6
Martinez, citing Baker v. McCollan, 443 U.S. at 140, 99 S.Ct. at 2692, states: "It must be remembered that even if a state decision does deprive an individual of life or property, and even if that decision is erroneous, it does not necessarily follow that the decision violated that individual's right to due process." 444 U.S. at 284 n. 9, 100 S.Ct. at 559 n. 9
The Eleventh Circuit has also stated:
The fact that defendants may have violated the duties set out by state law for employees of the Department of Youth Services [by releasing a known dangerous offender with an "extensive criminal and troubled psychiatric history" who shortly thereafter committed rape] does not mean that the defendants deprived plaintiff of her liberty rights without due process of law.
Jones v. Phyfer, 761 F.2d 642, 647 (11th Cir.1985).
7
The specific assertions by plaintiffs in Fox are remarkably similar to those made here:
Here the particular constitutional infringement complained of is the deprivation of liberty and property rights secured by the fourteenth amendment. In more specific factual terms, the claimants have asserted the right not to be injured in person or property by the irresponsible failure of the state to protect them against any risks of harm posed to them by a state parolee under the direct supervision of the state's agents. In sum, the right asserted is the right to be protected by the state from the possible depredations of a convicted criminal with known dangerous propensities who is under the direct supervision of the state's agents.
712 F.2d at 87-88. Because the state agent defendants were "unaware that the [claimants] as distinguished from the public at large faced any special danger," the court held that "claimants had no federal constitutional right to be protected by the state from the acts of Mason...." Id. at 88.
8
Plaintiffs have asserted no claim of a Fourth Amendment violation on the part of any defendant. Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) is thus not pertinent to the facts of this case | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/606727/ | 993 F.2d 686
UNITED STATES of America, Plaintiff-Appellee,v.Mark Allen VARELA, Defendant-Appellant.
Nos. 91-50815, 92-50233.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted March 3, 1993.Decided May 17, 1993.As Amended June 9, and Aug. 10, 1993.
Jerry D. Whatley, Santa Barbara, CA, for defendant-appellant.
John Shepard Wiley, Jr., Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before SCHROEDER, THOMPSON, and O'SCANNLAIN, Circuit Judges.
O'SCANNLAIN, Circuit Judge:
1
We are called upon to decide, among other things, whether a conviction that is expungeable under state law but that has never been formally expunged from the defendant's record can be a predicate offense under the federal felon in possession of a handgun statute, and whether that conviction may be considered in setting the criminal offense level under the Sentencing Guidelines.
2
* During the seven months between October 1990 and April 1991, Varela entered into several narcotics transactions with an undercover agent. Varela agreed to sell, and did sell, methamphetamines, cocaine, and marijuana to the agent. Varela also sold the agent semi-automatic firearms.
3
Varela advised the agent that he had several suppliers for the drugs. The agent met three of them: "Victor," Pulido, and Hernandez. Pulido and Hernandez were arrested along with Varela, and eventually pleaded guilty to the charges against them.
4
Varela was charged in two separate indictments with one count of conspiracy with intent to distribute cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1); three counts of possession with intent to distribute cocaine, two counts of distributing cocaine, and three counts of distributing methamphetamine, all in violation of section 841(a)(1); and two counts of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). The indictments were consolidated for trial. However, the district court severed the firearms charges for a separate trial so that the jury in the drug trial would not learn of Varela's prior felony. Varela was found guilty on all counts in both trials.
5
The district court sentenced Varela to 262 months imprisonment, the minimum within the Guidelines range, and imposed a $25,000 fine and 5 years of supervised release. Varela challenges his convictions, arguing (1) with regard to the drug convictions, that the district court's entrapment instruction was erroneous and (2) with regard to the firearm possession convictions, that the district court erred in not dismissing the firearm possession counts because the predicate conviction has been expunged. Varela also challenges his sentence, arguing (1) that the district court erred in enhancing his offense level on the basis of his role in the offense and (2) that the district court erred in considering an expunged conviction in calculating his criminal history level.
II
6
We first consider Varela's challenges to his convictions.
7
* Varela argues that the supplemental instruction regarding entrapment was flawed because it did not clearly indicate that the government bears the burden of proving beyond a reasonable doubt that the defendant was not entrapped.
8
"The defense of entrapment has two elements: (1) the defendant was induced to commit the crime by a government agent, and (2) he was not otherwise predisposed to commit the crime." United States v. Barry, 814 F.2d 1400, 1401 (9th Cir.1987). "When the defendant presents some evidence of both elements of the defense, the burden shifts to the prosecution to prove beyond a reasonable doubt either that there was no inducement or that the defendant was predisposed to commit the crime." United States v. Hoyt, 879 F.2d 505, 509, amended, 888 F.2d 1257 (9th Cir.1989).
9
In this case, the district court gave the following instructions regarding entrapment:
10
In order for the defendant to be found guilty of distributing methamphetamines ... the government must prove each of the following elements beyond a reasonable doubt.
11
First, the defendant intentionally delivered methamphetamines to the government agent.
12
Second, the defendant knew that it was methamphetamines or some other prohibited drug.
13
Third, that the defendant was not entrapped by the government into committing the crime.
14
. . . . .
15
A person is entrapped when the person has no previous intention to violate the law and is persuaded to commit a crime by government agents. On the other hand, where a person is already willing to commit a crime, it is not entrapment if government agents merely provide an opportunity to commit the crime.
16
During deliberations, the jury submitted a note to the court, asking for a clarification of the instruction regarding entrapment. The note asked: "Is the clause in line 2, 'no previous intention,' contradicted or overridden by the clause 'willing to commit' in line 4?" The district court responded with the following supplemental instruction:With regard to instruction 32 on entrapment, the basic concept is that there is no entrapment where the defendant was quote predisposed unquote, or already willing to commit the offense. And the government provides the opportunity to commit the offense. Entrapment may exist only where the defendant had no such predisposition and the idea of committing the crime was placed in his mind by government persuasion. The instructions following No. 32 will also give you guidance on approaching the question of entrapment. All instructions are of course to be considered as a whole.
17
Varela argues that this supplemental instruction was an abuse of discretion because it failed to emphasize that the government bears the burden of proving that the defendant was not entrapped. The government contends that Varela did not object to the instruction on burden of proof grounds before the district court and thus that the proper standard of review is plain error. "To preserve the right to appellate review ... [of a jury instruction, the defendant] must have objected properly in the district court." United States v. Kessi, 868 F.2d 1097, 1102 (9th Cir.1989). "Federal Rule of Criminal Procedure 30 prohibits a party from assigning error 'unless that party objects thereto before the jury retires to consider the verdict, stating distinctly the matter to which that party objects and the grounds of the objection.' " Id. (quoting Fed.R.Crim.P. 30). A general objection to the instruction does not suffice to preserve the issue on appeal.
18
Varela did not properly object to the instruction on burden of proof grounds before the district court. The district court thoroughly discussed the proposed instruction with defense counsel, repeatedly asking counsel if he had any problems with it. Counsel made no specific objection to the proposed language; instead he answered that he believed that the court should simply answer the jury's question with a simple "yes" or "no." At no time did the defense counsel mention the burden of proof. Furthermore, the court reiterated several times that it would be willing to consider any alternate formulation that Varela would prefer; Varela proposed no alternative.
19
Where, as here, the defendant does not properly object to the instruction, stating specifically the grounds for the objection, the instruction is reviewed for plain error. Kessi, 868 F.2d at 1103. "Plain error is 'highly prejudicial error affecting substantial rights[,] and is found only in exceptional circumstances.' " Id. (quoting United States v. Harris, 738 F.2d 1068, 1972 (9th Cir.1984)). "It must be highly probable that the error materially affected the verdict." Kessi, 868 F.2d at 1103.
20
We conclude that the instruction is not erroneous at all, let alone plain error. In reviewing a jury instruction, we must determine "whether the jury instructions as a whole are misleading or inadequate to guide the jury's deliberations." United States v. Joetzki, 952 F.2d 1090, 1095 (9th Cir.1991) (emphasis added). Here, the district court clearly instructed the jury in the original instruction that the burden of proving entrapment rests on the government. The district court's failure to emphasize the burden of proof in the supplemental instruction did not render the instructions, when viewed as a whole, inadequate.
21
Varela attempts to analogize to Notaro v. United States, 363 F.2d 169, 173, 175-76 (9th Cir.1966), in which this court concluded the district court's formulation of the entrapment instructions, when taken as a whole, could be read as assigning the burden of proof to the defendant instead of to the government. The Notaro instruction was as follows:
22
If, then, the jury should find beyond a reasonable doubt from the evidence in the case that before anything at all occurred respecting the alleged offense involved in this case, the accused was ready and willing to commit crimes such as charged in the indictment, whenever opportunity was offered and that the Government agents did no more than offer the opportunity, the accused is not entitled to the defense of unlawful entrapment.
23
On the other hand, if the jury should find from the evidence in the case that the accused had no previous intent or purpose to commit any offense of the character here charged, and did so only because he was induced or persuaded by some agent of the Government, then the defense of unlawful entrapment is a good defense and a jury should acquit the defendant.
24
Id. at 173 (emphasis added and deleted). The court held that the instruction was improper because it was "reasonably probable" that the jurors would have believed that the second paragraph placed the burden of proof on the defendant to prove the elements of the defense. A juror could interpret the second paragraph to mean that a defendant is only entitled to the entrapment defense if the jury makes the finding described in the paragraph, when in fact the defendant is also entitled to acquittal "if ... because of the entertainment of reasonable doubt, [the jury is] unable to 'find' that the necessary elements of the defense had not been excluded." Id. at 176. Although the district court had instructed the jury generally that the burden of proof rested on the prosecution, the court concluded that "[t]he possibility that there was confusion or misunderstanding is strengthened, not eliminated, by view of the instructions as a whole" because the general instruction and the specific instruction were contradictory. Id.
25
In this case, there is nothing in the supplemental instruction that contradicts the general instruction that the government bears the burden of proof on the entrapment issue. The supplemental instruction does not specifically instruct the jury to make a finding that the defendant was not predisposed before the defendant is entitled to the defense, as the instruction in Notaro did; instead, the instruction described the concepts behind the entrapment doctrine without reference to the burden of proof. We conclude that the instructions, viewed as a whole, properly rested the burden of proof on the government.
26
Varela also seems to be arguing that the supplemental instruction somehow misstates the substantive law of entrapment. It is not clear precisely what Varela's complaint is. He seems to suggest that the government must prove both elements of entrapment beyond a reasonable doubt. That is simply a misstatement of the law. Hoyt, 879 F.2d at 509.
27
In short, we conclude that the jury instructions did not amount to plain error.
B
28
Varela was convicted of two counts of possessing a handgun in violation of 18 U.S.C. § 922(g)(1), which applies to persons previously convicted of felonies. Varela argues that the predicate felony underlying the conviction had been expunged, and thus cannot form the basis of a conviction under section 922(g)(1).
Section 922(g) provides in relevant part:
29
It shall be unlawful for any person--
30
(1) who has been convicted in any court, of a crime punishable by imprisonment for a term exceeding one year ...
31
to ... possess in or affecting commerce, any firearm or ammunition....
32
Section 921(a)(20), in defining "crime punishable by imprisonment for a term exceeding one year," provides in relevant part:
33
What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
34
18 U.S.C. § 921(a)(20) (emphasis added).
35
Here, the predicate felony was committed when Varela was seventeen years old. After being convicted in state court of armed robbery, Varela was committed to the California Youth Authority ("CYA"). On January 9, 1989, after Varela had served his sentence, the Youthful Offender Parole Board issued Varela an Honorable Discharge from the CYA.
36
At the time Varela received his Honorable Discharge, section 1772(a) of the California Welfare and Institutions Code provided in relevant part:
37
Every person honorably discharged from control by the Youthful Offender Parole Board who has not, during the period of control by the authority, been placed in a state prison, shall thereafter be released from all penalties and disabilities resulting from the offense or crime for which he or she was committed, and every person discharged may petition the court which committed him or her, and the court may upon such petition set aside the verdict of guilty and dismiss the accusation or information against the petitioner who shall thereafter be released from all penalties and disabilities resulting from the offense or crime for which he or she was committed....
38
(Emphasis added.) Varela argues that the statute served to expunge the conviction from his record and thus he falls into the exception in section 921(a)(20). The government counters that the state provides a procedure for formal expungement, of which Varela has not availed himself. Thus, according to the government, Varela should not get the benefits of expungement. Whether Varela's conviction has been constructively expunged is not important to this issue, however, because the exception in section 921(a)(20) applies to convictions for which civil rights have been restored by statute in addition to those that have been formally expunged. See, e.g., United States v. Cardwell, 967 F.2d 1349, 1350 (9th Cir.1992); United States v. Erwin, 902 F.2d 510, 511 (7th Cir.), cert. denied, 498 U.S. 859, 111 S. Ct. 161, 112 L. Ed. 2d 127 (1990); United States v. Cassidy, 899 F.2d 543 (6th Cir.1990). Section 1772 operates to restore the discharged offender's civil rights, releasing the offender from all penalties and disabilities resulting from the offense automatically, as a matter of law. See, e.g., People v. Navarro, 7 Cal. 3d 248, 102 Cal. Rptr. 137, 158, 497 P.2d 481, 502 (1972).1
39
Accordingly, Varela's armed robbery conviction cannot be considered a "conviction" for purposes of section 922(g)(1) "unless ... [the] restoration of civil rights expressly provides that the person may not ... possess ... firearms." 18 U.S.C. § 921(a)(20). In Cardwell, 967 F.2d at 1351, we held that "in determining whether a restitution of civil rights expressly prohibits firearm possession, the district court must look to the whole of state law at the time of restoration." "In other words, if a felon falls into one of the categories specified by section 921(a)(20), his felony conviction may not serve as a predicate conviction for a violation of section 922(g)(1), unless he has been informed by state statute or other state action of any prohibition concerning firearms" at the time of expungement. Id. at 1350. The proper inquiry is "whether the particular civil right to carry guns has been restored by [state] law." Erwin, 902 F.2d at 513.
40
We must thus determine whether California law "expressly" prohibited Varela from possessing a firearm at the time Varela was discharged.2 Section 12021 of the California Penal Code prohibits any person who has been convicted of a felony from owning or possessing a concealable firearm. That section was in effect at the time Varela was honorably discharged from the CYA. However, at that time, no California court had ruled in a published opinion on whether the prohibition of section 12021 was a "penalty" or "disability" that is released by California Welfare and Institutions Code section 1772.3 Eight months later, however, the California Supreme Court in People v. Bell, 49 Cal. 3d 502, 262 Cal. Rptr. 1, 778 P.2d 129 (1989), cert. denied, 495 U.S. 963, 110 S. Ct. 2576, 109 L. Ed. 2d 757 (1990), addressed the precise question of whether section 12021's prohibition against carrying a firearm was released by section 1772. The court held the fact that the defendant had been honorably discharged from the CYA did not preclude his conviction under section 12021 for possession of a firearm. The conviction at issue in Bell involved the possession of a firearm in 1978; Varela was discharged in 1989.
41
Thus, the California Supreme Court in Bell determined that a person in Varela's position could be criminally convicted for possessing a firearm at the time Varela was discharged. Because Varela could have been convicted under California law, we conclude that he was expressly prohibited from possessing a firearm under section 921(a)(20). We defer to the California Supreme Court's interpretation of its own law because "[t]he intent of Congress [in creating the exception to section 922(g)(1) in section 921(a)(20) ] was to give effect to state reforms with respect to the status of an ex-convict." United States v. Cassidy, 899 F.2d 543 (6th Cir.1990). Since California law expressly prohibited Varela from possessing a firearm at the time he was discharged, we affirm Varela's conviction under section 922(g)(1).
III
42
We next consider Varela's challenges to his sentence.
43
* Varela argues that the district court erred in increasing his offense level for being an "organizer, leader, manager, or supervisor" under United States Sentencing Guidelines § 3B1.1(c).
44
The district court made the following findings regarding Varela's organizational role in the offense:
45
Probation officer found that--what the probation officer reported, what I think the testimony indicated, and that is that these offenses were organized by Mr. Varela. He had the contact with the buyer--at least he thought he had a buyer, that is the undercover officer. He had multiple contacts with suppliers, the amphetamine supplier, the first cocaine deal supplier where the man pulled out....
46
The second cocaine supplier, the co-defendants in this case, who eventually did supply the cocaine, with the man who had the guns, who may be the same person involved in the methamphetamine item so far as I can tell from the facts here. And in other words, Mr. Varela is out there with all these multiple contacts supplying illicit drugs.
47
He puts together transactions with various of these suppliers with the undercover agent. In effect, he's acting as the wholesaler or at least the middleman between the supplier and the presumed wholesaler, the undercover agent.
48
Now to my mind, that adds up to a leadership role. He's doing all this organizing and putting together these deals.
49
The court also adopted by reference the findings in the presentence report regarding Varela's role in the offense. Those findings are as follows:
50
Varela is viewed as the organizer or leader in this criminal activity in that he negotiated and transacted all of the drug deals. He transported, delivered and exchanged the drugs with the UA. He located suppliers not only for drugs but also for weapons. Pulido and Hernandez appear to have been Varela's suppliers; neither are viewed as having leadership roles. In considering the foregoing, Pulido and Hernandez are viewed as equal in culpability. As such, they are viewed as having lesser culpability than Varela but are viewed as equal in culpability with each other.
51
Varela does not challenge the finding that he coordinated the deals involving the various suppliers and the undercover agents. Rather, he essentially argues that these facts, even if true, are insufficient to support the ultimate finding that he was an "organizer, leader, manager or supervisor." In United States v. Avila, 905 F.2d 295, 299 (9th Cir.1990), however, the court upheld the enhancement for the organizational role of the defendant where the defendant coordinated the procurement and the distribution of drugs from numerous suppliers. Varela's role was similar to that of the defendant's in Avila; we conclude by analogy to Avila that the district court's finding that Varela was an organizer was not clearly erroneous.
52
The fact that Varela and his suppliers were not in a permanent hierarchical relationship does not preclude our conclusion. Section 3B1.1 allows enhancements for "organizers" as well as for "supervisors," "leaders," or "managers." An enhancement may be proper where, as here, a defendant organizes others in the commission of the criminal activity even though he does not retain a supervisory role over the other participants. The enhancement reflects the greater level of culpability of the participant who arranges the transaction.
53
Neither our holding in United States v. Mares-Molina, 913 F.2d 770, 773-74 (9th Cir.1990), nor United States v. Hoac, 990 F.2d 1099, 1110-11 (9th Cir.1993), compels a different conclusion. In Mares-Molina, the appellant allowed his trucking company to be used as a drop house for cocaine that had been smuggled into the country in the tires of large trucks. The district court upwardly adjusted his offense level under U.S.S.G. § 3B1.1 because he "managed" the trucking company. We reversed, holding that in order for an enhancement under § 3B1.1 to be proper,
54
the defendant must have exercised some control over others involved in the commission of the offense or he must have been responsible for organizing others for the purpose of carrying out the crime.
55
Mares-Molina, 913 F.2d at 773 (quoting United States v. Fuller, 897 F.2d 1217, 1220 (1st Cir.1990)). We went on to conclude that "[t]here [were] no facts to support the conclusion that Mares exercised control or was otherwise responsible for organizing, supervising, or managing others in the commission of the offense." Id. In short, we rejected the notion that for purposes of § 3B1.1, it was sufficient to " 'manage' a thing, such as a business or money or a warehouse, [instead of] a person." Id. at 774 (Rymer, J., dissenting).
56
We followed Mares-Molina in Hoac, in which the defendant was active in the commission of the offense, but to the extent he managed anything, he managed a business, not people. Hoac, 990 F.2d at 1110.
57
Here, in contrast to Mares-Molina and Hoac, by coordinating the activities of the other participants to the extent necessary to complete the transaction, Varela organized people, not merely things. See Mares-Molina, 913 F.2d at 773 (contrasting Mares-Molina's position to that of the defendant to that in Avila, noting parenthetically that in Avila there was "evidence that the defendant coordinated the procurement and distribution of the drugs"). The district court did not err in its two-level upward adjustment under § 3B1.1(c).
B
58
Varela argues that the district court incorrectly considered convictions that have been expunged by operation of state statute in calculating his criminal offense level.
59
As discussed in Part I.A, supra, Varela was convicted in state court of armed robbery when he was seventeen years old, was committed to the CYA, and after serving his sentence, was honorably discharged. At that time, under section 1772(a) of the California Welfare and Institutions Code, a person receiving an honorable discharge could petition the court to have the guilty verdict set aside.4
60
Because Varela never petitioned the court to have the conviction set aside, the district court concluded that the conviction had not been "expunged" and included the conviction in calculating Varela's criminal history category.
61
United States Sentencing Guideline § 4A1.2(j) provides that in calculating the criminal history category of a defendant:
62
Sentences for expunged convictions are not counted, but may be considered under § 4A1.3 (Adequacy of Criminal History Category).
63
Application note 10 to U.S.S.G. § 4A1.2 provides:
64
Convictions Set Aside or Defendant Pardoned. A number of jurisdictions have various procedures pursuant to which previous convictions may be set aside or the defendant may be pardoned for reasons unrelated to innocence or errors of law, e.g., in order to restore civil rights or to remove the stigma associated with a criminal conviction. Sentences resulting from such convictions are to be counted. However, expunged convictions are not counted. § 4A1.2(j).
65
(Emphasis added.) Notwithstanding application note 10, this court in United States v. Hidalgo, 932 F.2d 805 (9th Cir.1991), held that convictions set aside pursuant to section 1772 of the California Welfare and Institutions Code are "expunged" for purposes of United States Sentencing Guidelines § 4A1.2(j).
66
Varela argues that his conviction should be considered expunged even though he has not gone through the formal petitioning process described in the statute. He argues that the statute operates automatically to set aside the conviction, and that the petitioning process serves only to provide documentary evidence of what the statute has effected automatically. Varela relies on People v. Navarro, 7 Cal. 3d 248, 102 Cal. Rptr. 137, 158, 497 P.2d 481, 502 (1972), in which the California Supreme Court held that an offender receiving a certificate of honorable discharge from the California Youth Authority was entitled as a matter of right to have his conviction set aside. The court described the petitioning process as nothing more than a mere formality intended to provide to the discharged offender evidence that his conviction had been set aside:
67
If a pro forma release is required as documentary evidence [the offender] is entitled to this as a matter of right and may apply for a nunc pro tunc order of dismissal [under 1772] which the committing court has no authority to refuse.
68
Navarro, 102 Cal. Rptr. at 158, 497 P.2d at 502. The government, on the other hand, argues that the petitioning process is a formal requirement that cannot be waived, and that the conviction is not "expunged" for purposes of the Guidelines unless the procedure is followed.
69
We have never addressed the precise question of whether a conviction will be considered "expunged" for purposes of the Guidelines where the defendant is entitled to expungement but does not follow the formal procedures specified by statute.5 Cf. United States v. Kammerdiener, 945 F.2d 300, 301 (9th Cir.1991) (where a statute provided that a conviction would be "automatically set aside," see 18 U.S.C. § 5021 (emphasis added), upon the occurrence of an event, once the event occurred the conviction could not be considered in calculating the criminal history category). Other circuits have taken a formal approach: where a statute describes an expungement procedure, the expungeable conviction can be included in the criminal history category unless the defendant complies with the procedure. For example, in United States v. Bucaro, 898 F.2d 368, 372 n. 6 (3d Cir.1990), the court upheld the inclusion of the conviction, noting:
70
Under Pennsylvania law, [the appellant] could have moved to expunge his prior adjudications of juvenile delinquency before these federal indictments were entered.... This normally would have prevented the prior adjudication from being considered during sentencing.... However, [the appellant] did not move for expungement, and the juvenile adjudications remained on the record at the time of sentencing.
71
Similarly, in United States v. Cox, 934 F.2d 1114, 1124 (10th Cir.1991), the Tenth Circuit in interpreting a different California law providing a right of expungement held:
72
Although the conviction may have been expungeable before sentencing in the instant case, expungement does not occur automatically under [Cal.Penal Code § 1203.4] ... [T]he conviction was not expunged until after he was sentenced in the case at hand. We therefore conclude that at the time of sentencing [the conviction] was a "prior conviction."
73
See also United States v. Ruiz, 734 F. Supp. 312, 313-14 (N.D.Ill.1990) (rejecting the appellant's argument that an expungeable conviction should be treated the same as an expunged conviction where the defendant's record was never formally expunged); cf. United States v. Beaulieau, 959 F.2d 375 (2d Cir.1992) (conviction was considered expunged even though because of a clerical error it was not sealed because the defendant had gone through all of the proper expungement procedures).
74
On the other hand, where the expungement statute specified no procedures and provided that expungement "shall" be granted, the Tenth Circuit held that conviction could not be considered, even though the record was not formally expunged. United States v. Johnson, 941 F.2d 1102 (10th Cir.1991). The statute in Johnson provided:
75
Upon completion of the probation term ... the defendant shall be discharged without a court judgment of guilt, and the verdict or plea of guilty or plea of nolo contendere shall be expunged from the record and said charge shall be dismissed with prejudice to any further action.
76
Id. at 1110-11 (quoting Okla.Stat.Ann. tit. 22, § 991c (West 1986)) (emphasis added by Johnson court). The court stated that "the key question ... is whether the Oklahoma ... law automatically expunges a criminal record upon successful completion of probation, or whether an individual must take same affirmative action after probation to have the record expunged." Id. at 1111. The court concluded that the statute operated automatically because (1) the use of the term "shall" implies a command or mandate; and (2) no procedures were specified in the statute. Id. at 1111-12.
77
On balance, we conclude that the conviction is not expunged for purposes of sentencing. In no case has a federal court held that a defendant can get the benefit of an expungement statute when he or she has not complied with procedures spelled out in the statute. It would be inconsistent with application note 10 to United States Sentencing Guidelines § 4A1.2 to consider the restoration of civil rights that occurs automatically upon honorable discharge to be the equivalent to a formal expungement. See generally United States v. Anderson, 942 F.2d 606, 612 (9th Cir.1991) (en banc) (Guidelines commentary is entitled to considerable weight, more so than ordinary legislative history); cf. Hidalgo, 932 F.2d at 805 (where the conviction has actually been set aside, the conviction will be considered expunged).
78
AFFIRMED.
1
Whether the conviction is "expunged" is a key question in the analysis of another issue raised by the appellant, however. See Part II.B, supra
2
We emphasize that the proper inquiry is the state of the law at the time that Varela was honorably discharged from the CYA, not at the time he actually committed the conduct, including the possession of the weapon, that is the subject of this conviction. It is clear that at the time Varela committed the conduct that is the subject of this appeal--from October 1990 to April 1991--it was illegal for a person in Varela's position to possess a firearm under California law. See People v. Bell, 49 Cal. 3d 502, 262 Cal. Rptr. 1, 778 P.2d 129 (1989), cert. denied, 495 U.S. 963, 110 S. Ct. 2576, 109 L. Ed. 2d 757 (1990)
3
The California Attorney General, however, had issued an advisory opinion that held that persons who had been honorably discharged from the CYA were not "felons" for purposes of § 12021
4
The relevant statutory language is as follows:
[E]very person discharged may petition the court which committed him or her, and the court may upon such petition set aside the verdict of guilty and dismiss the accusation or information against the petitioner who shall thereafter be released from all penalties and disabilities resulting from the offense or crime for which he or she was committed....
Cal. Welfare & Institutions Code § 1772(a).
5
It appears that Hidalgo complied with the formal procedures because the court without discussion states that his conviction has been set aside | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2453294/ | 252 P.3d 646 (2011)
STATE
v.
NEWSOM.
No. 103934.
Court of Appeals of Kansas.
May 27, 2011.
Decision Without Published Opinion
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1537909/ | 6 B.R. 34 (1980)
In the Matter of James A. JOHNSON and Thela K. Johnson, Debtors.
No. 80 B 00112.
United States Bankruptcy Court, N.D. Illinois, W.D.
June 23, 1980.
Mary P. Gorman, Rockford, Ill., for debtors.
Herbert I. Greene, Rockford, Ill., for Public Finance.
MEMORANDUM OPINION
RICHARD N. DeGUNTHER, Bankruptcy Judge.
This case presents a challenge to some of the generalities that have been developing in regard to the concept of "good faith" in Chapter 13 cases. With rare exceptions, bankruptcy judges have been refusing to confirm 1% plans for one reason or another:
"Several bankruptcy judges who have considered Chapter 13 plans being proposed at the 1% or nominal level have concluded that such plans were not contemplated by Congress when it enacted the Code." (Bankruptcy Judge Pyle in the Anderson case.)
"A study of the legislative history reveals that the proponents of the Chapter 13 provision intended and projected that a substantial amount would be paid out under all proposed plans." (Bankruptcy Judge Mabey in the Iacovoni case.)
"A debtor who files a Chapter 7 case and seeks a discharge from his liabilities has no motive of paying his creditors. Instead he has the motive of avoiding his obligations to his creditors. A debtor who files a nominal or illusory Chapter 13 plan is really no different. (Bankruptcy Judge Phelps in the Bloom case.)
*35 "The element of good faith requires the debtor, at the very least, to make meaningful payments to holders of unsecured claims." (Bankruptcy Judge DeGunther in the Marlow case.)
To describe this case as a 1% case, however, is an over-simplification and misleading. Those fine judicial statements printed above are not necessarily applicable here. In this case the Debtors have one paramount motive: To preserve their home from foreclosure by curing a $2400 default. Section 1322(b)(3) specifically authorizes a debtor to so provide in his plan.
The Debtors would pay $20.00 per week for a minimum of three years to pay the default in full and unsecured creditors 1%. There are no secured claims. The amount of their weekly payments is consistent with their ability to pay.
This, then, is the question: Are the Chapter 13 provisions, the bankruptcy courts, and the Chapter 13 trustees available for the limited purpose of enabling a debtor to deal with his only secured creditor to the virtual exclusion of other creditors, given the exemplary and singular motive of preserving a home from foreclosure? The answer is yes.
Here, the Debtors will indeed be making "meaningful" and "substantial" payments into the plan, consistent with their income, to cure the default; they are not seeking to avoid responsibility for a non-dischargeable debt; and they will achieve a fresh start if they successfully complete the plan. Chapter 13, in this instance, appears to be an appropriate remedy. The payments to unsecured creditors are not a critical feature of the plan. The Debtors might just as well have proposed 0% payments to unsecured creditors.
Chapter 7 does not provide the Debtors with the remedy they need. Chapter 13 does. It is an imaginative approach by Debtors' counsel.
Moreover, it is difficult to see what Public Finance has to gain by objecting to confirmation of this plan. The cards fate dealt to Public ultimately will enable Public to realize either 1% (Chapter 13) or 0% (Chapter 7) on its claim. There is no genuine interest of Public which this Court would preserve or protect in denying the Chapter 13 remedy to the Debtors in this case.
I conclude the plan should be confirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/868721/ | FILED
NOT FOR PUBLICATION MAY 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10264
Plaintiff - Appellee, D.C. No. 4:11-cr-02230-DCB-
JJM-3
v.
FREDERICK PARKER, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted May 10, 2013
San Francisco, California
Before: W. FLETCHER, GOULD, and CHRISTEN, Circuit Judges.
Defendant-Appellant Frederick Parker appeals his conviction for conspiracy
to possess a destructive device in violation of 18 U.S.C. § 371 and 26 U.S.C.
§ 5861(d) and possession of a destructive device in violation of 26 U.S.C.
§ 5861(d). He contends that the district court abused its discretion by denying his
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
motion to sever his trial from that of his co-defendant. Parker’s co-defendant was
charged with drug-trafficking and firearm crimes in addition to being charged with
the same crimes as Parker.
We hold that the district court did not abuse its discretion because the joint
trial was not “so manifestly prejudicial as to require the trial judge to exercise his
discretion in but one way, by ordering a separate trial.” United States v. Sullivan,
522 F.3d 967, 981 (9th Cir. 2008) (quoting United States v. Decoud, 456 F.3d 996,
1008 (9th Cir. 2006)). The most important factors in determining whether there
was manifest prejudice “are whether the jury can compartmentalize the evidence
against each defendant and the judge’s diligence in providing evidentiary
instructions to the jury.” Sullivan, 522 F.3d at 981–82.
Parker was convicted based on evidence of his involvement in firebombing a
house thought to belong to a person involved in an attempted drug deal with some
Mexican Mafia members. Parker got involved in the firebombing because he was
living with a Mexican Mafia member. Parker was tried with a Mexican Mafia
leader named Alcantar. Two Mexican Mafia members testified for the government
against Alcantar and Parker, both of whom were involved in tossing gasoline-filled
bottles at the home.
2
Here, the jury was able to compartmentalize the evidence, as shown by “its
failure to convict all defendants on all counts.” Id. at 982 (citation omitted). The
jury acquitted Parker’s co-defendant on two charges. This selective verdict shows
that the jury considered the evidence on each charge in the indictment and gave
each “individual consideration.” Id.
Additionally, the prosecutors and witnesses presented the evidence in a way
that allowed the jury to compartmentalize the evidence. For example, in opening
statement and closing argument, the prosecutor said that Parker was not a member
of the Mexican Mafia or the drug conspiracy. The witnesses testified that Parker
was not a member of the Mexican Mafia and gave no evidence that Parker
participated in the drug conspiracy. These statements by the prosecutor in opening
statement and closing argument, and the statements of the witnesses in testimony,
tend to show that the jury understood the differences between the two defendants
and their alleged offenses.
The judge explicitly provided limiting instructions about the separate
charges and evidence at the start of the trial, during the presentation of evidence,
and at the end of the trial. See Sullivan, 522 F.3d at 982 n.9. These instructions
“neutralized” any prejudicial effect of the evidence admitted only against his co-
defendant. United States v. Stinson, 647 F.3d 1196, 1205 (9th Cir. 2011) (quoting
3
United States v. Patterson, 819 F.2d 1495, 1503 (9th Cir. 1987)). Parker has not
shown that “the curative instructions were inadequate.” United States v. Johnson,
297 F.3d 845, 855 (9th Cir. 2002). Instead, the instructions were fair and adequate.
Assuming without deciding that the abuse-of-discretion standard from
United States v. Hinkson, 585 F.3d 1247, 1267 (9th Cir. 2009) (en banc), applies,
we hold that the district court did not abuse its discretion because the court
“identified the correct legal standard” and its application of that standard was “not
illogical, implausible, or without support in inferences that may be drawn from the
facts in the record.”
AFFIRMED.
4 | 01-03-2023 | 05-22-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/97846/ | 228 U.S. 233 (1913)
SWEENEY
v.
ERVING.
No. 60.
Supreme Court of United States.
Argued February 28, 1913.
Decided April 7, 1913.
ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.
Mr. Lorenzo A. Bailey for plaintiff in error.
Mr. A.S. Worthington and Mr. Charles L. Frailey for defendant in error.
*234 MR. JUSTICE PITNEY delivered the opinion of the court.
The plaintiff in error, who was likewise the plaintiff below, sued the defendant in error in the Supreme Court of the District of Columbia to recover damages for personal injuries, sustained, as was alleged, through his negligence in the making of certain X-ray tests upon her *235 body with the use of apparatus owned and operated by him. The defendant pleaded the general issue "not guilty." Upon the trial, plaintiff adduced evidence tending to prove that she was under treatment by Dr. Kerr, a surgeon of the City of Washington, for the fracture of a rib, claimed by her to have been caused by the negligence of a railway company; that the company denied the existence of such fracture, and, at its request, she submitted to an X-ray diagnosis by Dr. Grey, a specialist; that his diagnosis and the radiograph made by him failed to disclose a fracture; that thereupon Dr. Kerr arranged with the defendant, Dr. Erving, a specialist in the use of the X-ray for diagnostic purposes, for an X-ray diagnosis to be made by him; that in pursuance of this arrangement she went four times to the defendant's office, the first time at Dr. Kerr's request, and on three subsequent occasions at defendant's request; that on the occasion of each visit, defendant subjected her to several exposures of the X-ray in the effort to obtain a satisfactory picture; that upon her first visit, and before any exposure, she told defendant that her employer had told her that the X-ray was dangerous, in reply to which defendant assured her that there was no more danger to her than to himself, and defendant's wife, who was his assistant in the X-ray work, and who was then present, assured the plaintiff that the defendant and his wife had never had an accident in all their experience, and had no more reason to have one in her case than in the thousand and more exposures previously made by them; that plaintiff felt no bad effects from the operation by Dr. Grey, nor from the operations by the defendant until her fourth visit; that during one of the exposures at the fourth visit, she felt bad effects and a sense of faintness, and about five hours later her back, which was the portion exposed to the X-ray in all the operations by the defendant, was red and irritated; that in the operation by Dr. Grey it was the *236 front part of the body that was exposed to the X-ray; that about two weeks after her fourth visit to the defendant, finding her back was burned and the injury developing, she returned to him and informed him of it, that he was the first physician who saw the burn, and he treated it from that time for two or three weeks; that since then, although treated by other physicians and in hospitals, the injury has not been cured, in consequence of which the plaintiff has not been able to work; that the injury is an X-ray burn, and caused and continues to cause much suffering. Plaintiff having rested, the defendant introduced evidence tending to prove that both he and his wife had had long experience in the use of the X-ray machine; that the machine to which the plaintiff was exposed by defendant was an excellent machine, in good condition; that on plaintiff's first visit she was told by defendant's wife, in the hearing of defendant, that while she and her husband had subjected many person to X-ray exposures, and had never had any ill results, it was impossible, by the use of any degree of care, to prevent occasional X-ray burns from the use of the apparatus; that at none of the visits of the plaintiff to the office of defendant for the purpose of being exposed to the X-ray apparatus did she make any complaint of ill effects from the exposure. Defendant himself testified fully respecting the character of his machine and the manner in which it has been used at each of the plaintiff's visits, and the length of each exposure and the result thereof. Thereupon several practicing physicians of experience testified as experts (having qualified by showing an acquaintance with the literature of the subject and also some practical experience in the use of the X-ray apparatus). Upon the basis of the defendant's testimony respecting the character of his X-ray apparatus and the manner of its use upon the plaintiff and the duration of the several exposures to which she was subjected, the experts testified that the machine *237 was a good one of its kind, and that the manner in which it had been used upon the plaintiff was in accordance with the practice of careful and prudent X-ray operators, and was as safe as exposures to the X-ray apparatus could be made; and each of these witnesses further testified that according to his experience and reading it was not possible in the use of the X-ray apparatus to guard absolutely against a resultant burn.
The case was submitted to the jury under instructions from the court, and they rendered a verdict in favor of the defendant. The plaintiff appealed to the Court of Appeals, where there was an affirmance (35 App. D.C. 57), and she sued out this writ of error.
The assignments of error present in effect but two questions
1. The plaintiff requested the trial court to instruct the jury as follows:
"If you believe upon the evidence that in the course of the operation of the X-ray apparatus by the defendant the plaintiff was burned, that fact is of itself evidence of negligence on his part, and casts upon him the burden of proving, if he can, by a preponderance of evidence, that the plaintiff's injury was not caused, in whole or in part, by his negligence, and in such case, unless you find by a preponderance of the evidence that said injury was not caused in whole or in part by the defendant's negligence, your verdict should be for the plaintiff."
The trial judge refused this request, and on the contrary instructed the jury "That the burden of proof is upon the plaintiff to establish by a fair preponderance of the evidence that the burn upon her back was caused by negligence on the part of the defendant in the manner in which he subjected her to exposure by the X-ray."
The contention in behalf of the plaintiff is that since the injury to the plaintiff was caused by an agency in the *238 possession of the defendant and under his exclusive management and control, there arises from this, coupled with the fact that personal injury resulted therefrom to the plaintiff, a presumption of negligence on defendant's part, upon the doctrine of res ipsa loquitur, and that the burden is thereby imposed upon him to overcome that presumption by a preponderance of evidence sufficient to satisfy the jury that the injury was not caused by negligence on his part. As will be seen, this contention includes two propositions; the first, that the case is a proper one for the application of the doctrine, res ipsa loquitur; the second, that the application of this doctrine relieves the plaintiff from the burden of proof and imposes that burden upon the defendant. These two propositions were coupled together in the requested instruction, and, upon familiar principles, no legal error was committed by the trial court in refusing the request, if either part of it was not well founded in law.
In the view we take of the matter, it is not necessary to pass upon the question whether the evidence presented a case for the application of the rule res ipsa loquitur; for the reason that in cases where that rule does apply, it has not the effect of shifting the burden of proof.
The general rule in actions of negligence is that the mere proof of an "accident" (using the word in the loose and popular sense) does not raise any presumption of negligence; but in the application of this rule, it is recognized that there is a class of cases where the circumstances of the occurrence that has caused the injury are of a character to give ground for a reasonable inference that if due care had been employed, by the party charged with care in the premises, the thing that happened amiss would not have happened. In such cases it is said, res ipsa loquitur the thing speaks for itself; that is to say, if there is nothing to explain or rebut the inference that arises from the way in which the thing happened, *239 it may fairly be found to have been occasioned by negligence.
The doctrine has been so often invoked to sustain the refusal by trial courts to non-suit the plaintiff or direct a verdict in favor of the defendant, that the application of the rule, where it does apply, in raising a question for the jury, and thus making it incumbent upon the defendant to adduce proof if he desires to do so, has sometimes been erroneously confused with the question of the burden of proof. But in the requested instruction now under consideration the matter was presented in no equivocal form. Plaintiff's insistence was not merely that the evidence of the occurrence of the injury under the circumstances was evidential of negligence on defendant's part, so as to make it incumbent upon him to present his proofs; the contention was that it made it necessary for him to prove by a preponderance of the evidence that there was an absence of negligence on his part.
In Stokes v. Saltonstall (1839), 13 Pet. 181, 190, which was an action against a stage-coach owner to recover damages for an injury sustained by a passenger through the upsetting of the coach, the trial court instructed the jury that "The facts that the carriage was upset, and the plaintiff's wife injured, are prima facie evidence that there was carelessness, or negligence, or want of skill on the part of the driver, and throw upon the defendant the burden of proving that the accident was not occasioned by the driver's fault;" and also, that it was incumbent on the defendant to prove that the driver was a person of competent skill and good habits, and that he acted on the occasion in question "with reasonable skill, and with the utmost prudence and caution." The judgment was sustained by this court against the contention (p. 193), that although the facts of the overturning of the coach and the injury sustained were prima facie evidence of negligence, they did not throw upon the defendant the burden of *240 proving that the overturning and injury were not occasioned by the driver's default, but only that the coachman was a person of competent skill in his business, that the coach was properly made, the horses steady, etc. A reading of the report shows that the case turned upon the high degree of care owing by carrier to passenger, and that the court did not rule that the circumstances of the occurrence shifted the burden of proof upon the main issue. Such is the effect that has uniformly been given to the decision. New Jersey R. & T. Co. v. Pollard, 22 Wall. 341, 346, 350; Pennsylvania Co. v. Roy, 102 U.S. 451, 455; Inland & Seaboard Coasting Co. v. Tolson, 139 U.S. 551, 554, 555; Gleeson v. Virginia Midland R. Co., 140 U.S. 435, 443, 444; Patton v. Texas & Pacific Ry. Co., 179 U.S. 658, 663.
In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant's general issue into an affirmative defense. When all the evidence is in, the question for the jury is, whether the preponderance is with the plaintiff.
Such, we think, is the view generally taken of the matter in well-considered judicial opinions.
Kay v. Metropolitan St. Ry. Co., 163 N.Y. 447, was an action by passenger against carrier, and the New York Court of Appeals said (p. 453): "In the case at bar the plaintiff made out her cause of action prima facie by the aid of a legal presumption (referring to res ipsa loquitur), but when the proof was all in the burden of proof had not *241 shifted, but was still upon the plaintiff. . . . If the defendant's proof operated to rebut the presumption upon which the plaintiff relied, or if it left the essential fact of negligence in doubt and uncertainty, the party who made that allegation should suffer, and not her adversary. The jury were bound to put the facts and circumstances proved by the defendant into the scale against the presumption upon which the plaintiff relied, and in determining the weight to be given to the former as against the latter, they were bound to apply the rule that the burden of proof was upon the plaintiff. If, on the whole, the scale did not preponderate in favor of the presumption and against defendant's proof, the plaintiff had not made out her case, since she had failed to meet and overcome the burden of proof." The rule thus declared has since been adhered to in the courts of New York. Hollahan v. Metropolitan St. Ry. Co., 73 N.Y. App. Div. 164, 169; Adams v. Union Ry Co., 80 N.Y. App. Div. 136, 139; Dean v. Tarrytown &c. R. Co., 113 N.Y. App. Div. 437, 439. A similar view appears to be entertained in New Hampshire. Hart v. Lockwood, 66 N.H. 541; Boston & Maine R. Co. v. Sargent, 72 N.H. 455, 466. The same rule has been followed in a recent series of cases in the North Carolina Supreme Court. Womble v. Grocery Co., 135 N. Car. 474, 481, 485; Stewart v. Carpet Co., 138 N. Car. 60, 66; Lyles v. Carbonating Co., 140 N. Car. 25, 27; Ross v. Cotton Mills, 140 N. Car. 115, 120; 1 L.R.A. (N.S.) 298, 301. In the Stewart Case the court said (138 N. Car. 66): "The rule of res ipsa loquitur does not relieve the plaintiff of the burden of showing negligence, nor does it raise any presumption in his favor. Whether the defendant introduces evidence or not, the plaintiff in this case will not be entitled to a verdict unless he satisfies the jury by the preponderance of the evidence that his injuries were caused by a defect in the elevator, attributable to the defendant's negligence. The law attaches no special weight, as proof, to the fact of an accident, *242 but simply holds it to be sufficient for the consideration of the jury, even in the absence of any additional evidence."
2. The sole remaining question is raised by the refusal of the trial court to instruct the jury, as prayed by the plaintiff, in the following terms: "If you believe upon the evidence that in the ordinary and careful operation of the X-ray apparatus upon a woman by an operator having the requisite knowledge and skill enabling him to operate it with the utmost degree of safety there is a possibility, which could not be foreseen by such an operator, of injury to the woman by reason of her condition or of any matter tending to predispose her to injury in consequence of such operation and that such possibility was known to the defendant or by proper inquiry or study should have been known to him, it was his duty to inform the plaintiff of such possibility before he operated upon her; and if you further believe upon the evidence that he failed to perform such duty, or that in the performance of the operation he failed to exercise the skill and care required of him as such operator, and that the plaintiff was thereby injured, your verdict should be for the plaintiff." The terms of this request are self-contradictory and confusing dealing, as it does, with a possibility of injury to the plaintiff "which could not be foreseen" by the defendant, and combining inseparably with it the hypothesis that "such possibility was known to the defendant or by proper inquiry or study should have been known to him" and for this reason alone it was properly rejected by the trial court. But, besides this, it does not appear that there was any evidence on which the jury could properly base a finding that there was danger of injury to the plaintiff by reason of her condition or of any other matter tending to predispose her to such injury; nor to sustain a finding that such possibility was known to the defendant, or by proper study or inquiry should have been known to him. Nor could it be *243 said, as matter of law, that defendant had undertaken any duty requiring him to make special study or inquiry respecting plaintiff's condition or the possibility of injury to her, or to advise her of such possibility of injury; for there was testimony, already referred to, that would have warranted a finding that Dr. Kerr had assumed the responsibility of advising the plaintiff respecting the propriety of her submitting to the operation.
No error being found in the record, the judgment is
Affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3034542/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-1456
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Carlos Darrell Dickerson, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: May 27, 2004
Filed: May 28, 2004
___________
Before MELLOY, HANSEN, and COLLOTON, Circuit Judges.
___________
PER CURIAM.
Carlos Dickerson challenges the sentence imposed by the district court1 upon
a jury conviction for possessing a firearm after having been convicted of a
misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9). We
affirm.
At trial, two witnesses testified that Dickerson fired a pistol near his ex-
girlfriend’s apartment. In addition, the government submitted a recording of a 911
1
The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
phone call from the ex-girlfriend, who reported that Dickerson had shot at her
apartment, and forensic evidence that Dickerson had discharged a weapon or been in
close proximity to a discharged weapon. The jury convicted Dickerson. The
presentence report (PSR) recommended applying the aggravated-assault Guideline
because the pistol was used in connection with another felony offense, namely the
aggravated assault. See U.S.S.G. §§ 2K2.1(c) (cross-reference provision), 2X1.1(a)
(base offense level is determined by substantive offense), 2A2.2(a) (base offense level
of 15 for aggravated assault), 2A2.2(b)(2)(A) (5-level increase if firearm was
discharged). Dickerson denied firing the pistol and objected to cross-referencing the
aggravated-assault Guideline. The district court adopted the PSR’s recommendation,
and sentenced Dickerson to 37 months imprisonment and 3 years supervised release.
On appeal, Dickerson challenges the district court’s finding that he fired the
pistol. Based upon the evidence presented at trial, however, we conclude the district
court did not clearly err in finding that Dickerson possessed the firearm in connection
with an aggravated assault. See United States v. Jones, 327 F.3d 654, 656-57 (8th
Cir. 2003) (clear-error review).
Accordingly, we affirm.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2465684/ | 778 S.W.2d 391 (1989)
Jack HUFFSTUTTER, et al., Plaintiffs-Respondents,
v.
MICHIGAN MUTUAL INSURANCE COMPANY, Defendant-Appellant.
Nos. 55539, 55713.
Missouri Court of Appeals, Eastern District Division Two.
August 1, 1989.
Motion for Rehearing and/or Transfer Denied September 6, 1989.
Application to Transfer Denied November 14, 1989.
Casey & Meyerkord, P.C., Stephen F. Meyerkord and John A. Lally, St. Louis, for defendant-appellant.
Brown, James, & Rabbitt, P.C., Lawrence B. Grebel and Charles E. Reis, IV, St. Louis, for plaintiffs-respondents.
Motion for Rehearing and/or Transfer to Supreme Court Denied September 6, 1989.
KAROHL, Judge.
This appeal involves a judgment in favor of Jack Huffstutter and Marilyn Jacko f/k/a Marilyn Huffstutter (Huffstutters) on their claim for insurance benefits on a fire loss of real and personal property. The trial court found: (1) Michigan Mutual Insurance Company issued a homeowners policy on the "building known as a clubhouse"; (2) there was coverage under the policy for the loss; and (3) Huffstutters were entitled to payment for the policy limits where the loss exceeded the limits, but not living expenses. The trial court *392 denied Huffstutters request for prejudgment interest pursuant to § 408.020 RSMo 1978 and damages for vexatious refusal to pay pursuant to § 375.420 RSMo 1978. Both parties appeal from the judgment.
Michigan Mutual Insurance Company (Michigan Mutual) appeals claiming the court erred in finding coverage existed because Huffstutters did not occupy the dwelling principally as a private residence. Huffstutters appeal claiming the court erred by failing to award prejudgment interest as provided in § 408.020 on their claim from the date the damages became liquidated. We affirm the finding of coverage under the policy and reverse and remand for a determination and award of interest.
The following provisions of the insurance policy are relevant to the issues on appeal.
COVERAGE ADWELLING
This policy covers the described dwelling building ... occupied principally as a private residence.
* * * * * *
COVERAGE CUNSCHEDULED PERSONAL PROPERTY
This policy covers unscheduled personal property usual or incidental to the occupancy of the premises as a dwelling and owned or used by an Insured, while on the described premises ... occupied exclusively by the Insured.
* * * * * *
When loss payable.
The amount of loss for which this Company may be liable shall be payable sixty days after proof of loss ... is received by this Company and ascertainment of the loss is made either by agreement between the insured and this Company expressed in writing or by the filing with this Company of an award as herein provided.
The record discloses evidence of the following facts. Huffstutters purchased a policy of homeowners insurance from Michigan Mutual Insurance Company through an independent broker, C.A. Vegley. The policy was purchased to insure Huffstutters' building located at 5831 Keller Road. The building was a one story, frame building with artificial stone siding owned by Huffstutters. Huffstutters lived on Chippewa at the time they purchased the policy. However, they listed their mailing address as 5831 Keller Road. Shortly thereafter, Huffstutters rented and moved into a two-family, two-story farmhouse located 300 yards from the clubhouse. The Huffstutters, as renters, had no insurable interest in the rented farmhouse. The address of the farmhouse was also 5831 Keller Road.
According to the terms of the policy, coverage existed for the premises located at 5831 Keller Road and described as a single-family, frame dwelling and unscheduled personal property contained therein. On April 4, 1974, Huffstutters sustained hail damage to the dwelling. Shingles had blown off the roof and two windows were cracked. The hail did not damage the farmhouse. Huffstutters submitted a proof of loss under the subject policy. They received payment on their claim. Michigan Mutual's claim adjuster, Jack Sartorius, testified he visited the farmhouse, not the clubhouse, when he processed the hail claim at 5831 Keller Road. There was no evidence this was the result of any act of Huffstutters. As a result of the hail claim, Michigan Mutual determined the dwelling had a higher value than it was insured for and initiated an increase in coverage from $15,000 to $25,000 on the clubhouse and $7,500 to $12,500 on the unscheduled personal property.
On May 5, 1975, the clubhouse was destroyed by fire. Michigan Mutual admitted in its answer "the value of the house destroyed by the fire of May 5, 1975 was, on that date, $25,000, and the value of contents... $12,500." Huffstutters notified Michigan Mutual of the loss on May 9, 1975. On October 9, 1975, Huffstutters submitted a proof of loss and requested payment from Michigan Mutual for the clubhouse, unscheduled personal property and living expenses. On February 18, 1976, Michigan Mutual, by letter, denied Huffstutters claim. It gave two reasons for denying the claim. It informed the Huffstutters that the stated description of *393 property at 5831 Keller Road did not describe the location of the clubhouse and the policy did not provide coverage for a secondary residence. However, Michigan Mutual offered Huffstutters $1,000 for loss of their unscheduled personal property away from the insured premises. The policy provided for such loss.
Thereafter, Huffstutters filed suit against Michigan Mutual. The first lawsuit was dismissed without prejudice. Huffstutters refiled to recover their loss for real property, personal property, and for living expenses, prejudgment interest and damages for vexatious penalties. By answer, Michigan Mutual admitted it issued the policy covering property at 5831 Keller Road and "it paid a claim for hail damage to said property at 5831 Keller Road." By way of affirmative defense it alleged:
(4) ... plaintiffs failed to comply with the terms and conditions of said policy of insurance.
* * * * * *
(6) ... the insured property was located at 5831 Keller Road and said property was not damaged or destroyed by fire and that plaintiffs sought to recover under said policy of insurance for property that was not covered or insured by defendant Michigan Mutual Insurance Company.
The trial court made findings of fact and conclusions of law and entered a judgment in favor of Huffstutters for the policy limits on the real and personal property [it was undisputed the loss exceeded the limits] but denied prejudgment interest and damages for statutory vexatious penalties. Both parties appeal.
Michigan Mutual's claim of error is the court erred in finding coverage existed under the policy for the clubhouse and personal property because the evidence included admissions that the Huffstutters did not occupy the destroyed house as a principal residence. Michigan Mutual interprets the Coverage A Provisions to require that the insured occupy the insured premises as their principal residence as a requirement for coverage. Huffstutters' response is that the insured premises must be principally used as a dwelling, when used, and coverage is not limited to a principal residence of the named insured. The trial court agreed with the Huffstutters' interpretation.
In this court-tried case we review under the standards set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The judgment of the trial court will be sustained unless there is no substantial evidence to support it, or unless it erroneously declared or applied the law. Interpretation of an insurance policy is a question of law. Moore v. Commercial Union Insurance Company, 754 S.W.2d 16, 18 (Mo.App. 1988). Insurance policies are contracts, and thus contract construction rules are applicable to insurance policies. Id.
The parties disagree over the meaning of this insuring provision: "[t]his policy covers the described dwelling building ... occupied principally as a private residence." In its brief, Michigan Mutual contends the language "occupied principally as a private residence" means Huffstutters were required to occupy the clubhouse as their primary residence and place of dwelling as a condition to coverage under the policy. Michigan Mutual contends the court erred in finding coverage where the Huffstutters admittedly used the clubhouse as a secondary residence. It does not claim the clubhouse was ever used other than as a residence, nor is there any dispute both buildings had the same address. Huffstutters emphasize the word "principally" is an adverb which modifies and restricts the word "occupancy" and hence their use of the clubhouse. Huffstutters' interpretation of the language is that in order to maintain coverage they were required to use the clubhouse as a private residence, when used.
In support of its interpretation of the language in the above provision Michigan Mutual relied upon three Texas cases. See, C.M. Fisher v. Indiana Lumbermens Mutual Insurance Company, 456 F.2d 1396 (5th Cir.1972); Bryan v. United States Fire Insurance Company, 456 S.W.2d 702 (Tex.Ct.App.1970); J.W. Doyle v. Members *394 Mutual Insurance Company, 679 S.W.2d 774 (Tex.Ct.App.1984). In each of the above cases a dwelling was destroyed by fire. The operative insuring clause in these cases read: "COVERAGE A DWELLING, as described on Page 1 of this policy, while occupied by the Insured principally for dwelling purposes." (Our emphasis). This language was interpreted by each court to mean that the insurance coverage was explicitly conditioned upon occupancy by the insured. The property was not insured when unoccupied by the insured. Possession and ownership of the insured property was insufficient to maintain coverage if the insured did not occupy the dwelling at the time of the fire.
Each case was appealed on the factual determination of whether the owner occupied the insured dwelling at the time of fire loss. In Fisher, the court held the insured was not occupying the house principally for dwelling purposes when the fire occurred but was instead living several miles away while the house was undergoing repairs in preparation for its eventual occupancy by insured. Fisher, 456 F.2d at 1398. In Bryan, the court held that insured, who was renting house at time of fire, was not insured when the insured was not occupying it as his own dwelling, as when he rented out the entire house. Bryan, 456 S.W.2d at 704-05. In Doyle, the court held insured, who had moved from Azle, Texas, to Maud, Texas, before the residence burned and had no intention of returning, was not occupying the residence principally for his dwelling purposes even though his son was living at the residence at the time of the fire. Doyle, 679 S.W.2d at 775-76.
Here the insuring clause has no requirement of occupancy by the insured. The present policy contains no exclusion clause for which "vacancy" would suspend coverage if the insured premises became vacant. Coverage is not explicitly conditioned upon occupancy and use by the insured as a primary dwelling. This policy is unlike the insuring clauses in Fisher, Bryan and Doyle. Michigan Mutual's reliance on these cases in support of their interpretation is misplaced. Michigan Mutual's interpretation of the provision would require reading the following words into the provision: "[t]his policy covers the described dwelling building (when occupied by insured) principally as (his primary place of) private residence." Courts may not rewrite a contract of insurance as Michigan Mutual's interpretation requires. Protective Casualty Insurance Company v. Cook, 734 S.W.2d 898, 905 (Mo.App.1987). Our duty is to interpret and enforce the contract as written. Id.
We find Coverage Clause A unambiguous. Where language of an insurance policy is unambiguous there is no room for construction and the words must be given their usual and plain meaning. Luyties Pharmacal Co. v. Frederick Co., Inc., 716 S.W.2d 831, 835 (Mo.App.1986); Vail v. Midland Life Ins. Co., 108 S.W.2d 147, 151 (Mo.App.1937). "Where language in an insurance contract is unequivocal, it is to be given its plain meaning notwithstanding the fact that it appears in a restrictive provision of a policy." Harrison v. MFA Mutual Insurance Co., 607 S.W.2d 137, 142 (Mo. banc 1980). The Coverage Clause A, as written, does not require Huffstutters to maintain their principal place of residence at the clubhouse. It required the clubhouse use to be as a dwelling house. Accordingly, we find no error.
Huffstutters' claim of error on appeal is the court erred by failing to award prejudgment interest pursuant to § 408.020 RSMo 1969 and 1979. Huffstutters contend they are entitled to prejudgment interest at six percent from February 18, 1976, to October 1, 1979, and at nine percent after October 1, 1979.
Section 408.020 RSMo 1969 provided "[clreditors shall be allowed to receive interest... for all moneys after they become due and payable in written contracts...." The general rule is a policy holder is entitled to interest from the date the claim became payable under the policy. Francka v. Fire Insurance Exchange, 668 S.W.2d 189, 190-91 (Mo.App.1984). A claim becomes liquidated so as to bear interest when the amount due is fixed by *395 agreement between the parties. Twin River Construction Co., Inc., v. Public Water District No. 6, 653 S.W.2d 682, 695 (Mo. App.1983). Here the policy benefits were payable sixty days after the proof of loss was received. Huffstutters submitted a timely proof of loss on October 9, 1975. The amount of the loss was ascertainable at that time.
Michigan Mutual contends the evidence supports denial of prejudgment interest based upon equitable principles of fairness and justice. It cites Catron v. Columbia Mutual Insurance Company, 723 S.W.2d 5 (Mo. banc 1987) in support of its contention. In Catron, the court recognized equitable principles of fairness and justice may be considered when awarding prejudgment interest on an unliquidated demand. Id. at 7. See, St. Louis Housing Authority v. Magafas, 324 S.W.2d 697 (Mo. banc 1959) (Equitable solution was to allow interest on unliquidated demand where defendants were denied use of their property during the period before trial).
Here the demand is liquidated. Equitable principles of fairness and justice may not be considered when awarding prejudgment interest on a liquidated demand. An award of prejudgment interest in a case where § 408.020 is applicable is not a matter of court discretion; it is compelled. St. Joseph Light & Power Company v. Zurich Insurance Company, 698 F.2d 1351, 1355 (8th Cir.1983). The existence of a bona fide dispute as to the amount owed does not preclude recovery of interest. Twin River Construction, 653 S.W.2d at 695. The court must consider the character of the claim, not the defense to it, when determining whether the claim is liquidated. Id. Huffstutters' claim was a contractual claim for an ascertainable amount which was governed by § 408.020. Therefore, Huffstutters are entitled to prejudgment interest at the legal rate of interest on their claim from the date it became liquidated as provided in the insurance policy. See, Grantham v. Shelter Mutual Insurance Co., 721 S.W.2d 242, 245 (Mo.App.1986).
Section 408.020 provided, in pertinent part: "[c]reditors shall be allowed to receive interest at the rate of six [nine percent effective September 28, 1979] percent per annum, when no other rate is agreed upon, for all moneys after they become due and payable, on written contracts...." Section 408.020 RSMo 1969.
We affirm judgment for Huffstutters. We remand for determination of prejudgment interest and amendment of judgment in accord with this opinion.
GRIMM, P.J., and GARY M. GAERTNER, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1537610/ | 142 B.R. 96 (1992)
In the Matter of TOTAL TECHNICAL SERVICES, INC., Debtor.
In re TTS, INC., Debtor.
TTS, INC. and Total Technical Services, Inc., Plaintiffs,
v.
George R. STACKFLETH and Vaughn W. Duff, Defendants.
Bankruptcy Nos. 89-413, 89-414, Adv. Nos. 89-111, 89-112.
United States Bankruptcy Court, D. Delaware.
May 11, 1992.
*97 Stephen W. Armstrong, Philadelphia, Pa., Richard G. Elliott, Jr., Wilmington, Del., for debtors/plaintiffs.
Norman L. Pernick, Wilmington, Del., for Vaughn W. Duff, defendant.
B. Alan Seidler, Nyack, N.Y., Steven Goldberg, Wilmington, Del., for George R. Stackfleth, defendant.
MEMORANDUM OPINION AND ORDER
HELEN S. BALICK, Bankruptcy Judge.
The Debtors, TTS, Inc. and Total Technical Services, Inc., filed a complaint against George R. Stackfleth and Vaughn W. Duff. Defendant Stackfleth has moved to dismiss the complaint for lack of subject matter jurisdiction and personal jurisdiction or alternatively for this court to abstain pursuant to 28 U.S.C.A. § 1334. Defendant Duff has moved to dismiss for lack of subject matter jurisdiction, to abstain pursuant to 28 U.S.C.A. § 1334, and in the alternative, to transfer venue to the District of New Jersey. The material facts and legal issues in the two motions are sufficiently similar to warrant resolution of both in this one decision.
I. Facts.
On Defendants' motions to dismiss, the court accepts all well-pleaded allegations of the Plaintiffs as true. In connection with the other motions, the court considers the facts the parties concede and the facts to which they stipulate in their pleadings and briefing. Debtor TTS, Inc. is a New York corporation with its principal place of business in Blue Bell, Pennsylvania. Debtor Total Technical Services, Inc., a wholly-owned subsidiary of TTS, is a Delaware corporation with its principal place of business *98 in Blue Bell, Pennsylvania. Defendant Stackfleth resides in New York. Defendant Duff resides in New Jersey. Both were officers of one or both of the Debtors.
On approximately July 1, 1989, Stackfleth filed a wrongful discharge action against both Debtors in the Supreme Court of the State of New York, County of Rockland, seeking actual damages of $318,076.65 ("the New York litigation"). The Debtors filed Chapter 11 petitions in this court on July 14, 1989. On January 22, 1990, an action alleging violations of federal and state securities law entitled Saltzman Partners & O'Rourke v. Stackfleth was filed in United States District Court for the District of New Jersey ("the Saltzman litigation"). Stackfleth and Duff are among the named defendants in that action.
The Debtors' complaint filed in December 1989 alleges that each Defendant used his position and authority as a corporate officer in a deliberate manner to enrich himself at the expense of the Debtors. The complaint contains 11 counts. Counts I through VII, and IX state claims of fraud, mismanagement, waste, diversion, misappropriation, self-dealing, and breach of fiduciary duty against either or both Stackfleth and Duff, and seek damages in excess of $375,000. Count VIII claims Stackfleth and Duff aided and abetted each other in furtherance of the conduct alleged in the other counts. Count X seeks an accounting of corporate assets, and count XI seeks punitive damages for each of the stated claims.
II. This Court Has Related Jurisdiction Of This Proceeding.
Both Defendants move to dismiss for lack of subject matter jurisdiction. Title 28, section 1334(b) grants the district court jurisdiction of "all civil proceedings arising under title 11, or arising in or related to cases under title 11." Title 28, section 157(a) allows the district court to refer to the bankruptcy court "all cases under title 11 and any and all proceedings arising under title 11 or arising in or related to a case under title 11. . . ." Title 28, section 157(b)(1) states:
Bankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a case under title 11. . . .
Stackfleth, apparently oblivious to these statutes, argues that this court has no jurisdiction because the complaint does not involve a federal question, nor is there diversity between the parties. As the above quoted language indicates, his argument is irrelevant and has no merit.
Duff acknowledges the above statutes, but argues that the proceeding against him is not core, nor is it related to a case under title 11. Debtors contend that their complaint initiated a core proceeding.
Debtors first argue the adversary proceeding against Stackfleth is core because of 28 U.S.C.A. § 157(b)(2)(C): "Core proceedings include . . . counterclaims by the estate against persons filing claims against the estate." Stackfleth filed a proof of claim on August 14, 1989, in the amount of $318,076.65. Debtors' complaint against Stackfleth was filed on December 8, 1989. Debtors imaginatively argue that this adversary proceeding is a "counterclaim" to Stackfleth's claim.
Bankruptcy Code section 502(a) and Rule 3007 govern the procedure for a debtor's response to a claim. Rule 3007 requires a debtor to include any counterclaim with its objection to the claim by joining with its objection "a demand for relief." The Debtors filed an objection to the proof of claim on January 22, 1991, well after the filing of the complaint against Stackfleth. The objection was not joined with a demand for relief, but merely referred to section 502(d) of the Bankruptcy Code as the ground for disallowing the claim. The complaint makes no reference to the proof of claim. Under these circumstances, this adversary is not a "counterclaim" within the meaning of § 157(b)(2)(C), and that section therefore cannot make this proceeding core. Because the adversary is not a counterclaim, any reliance by the Debtors upon Katchen v. Landy, 382 U.S. 323, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966) is equally misplaced.
*99 Debtors alternatively argue that their claims against both Defendants is a proceeding to recover fraudulent conveyances, or to recover preferences and is therefore a core proceeding as to both Defendants pursuant to 28 U.S.C.A. § 157(b)(2)(H) ("Core proceedings include . . . proceedings to determine, avoid, or recover fraudulent conveyances") and § 157(b)(2)(F) ("Core proceedings include . . . proceedings to determine, avoid, or recover preferences"), respectively. Debtors' claims are not based on 11 U.S.C. § 548 (fraudulent transfer action) or § 547 (preference action). The claims are based solely upon state law concepts as previously described in Section I, supra. Debtors rejoin that their state law actions are in the nature of an action pursuant to § 547 and § 548, and should therefore be considered core under either subsection (F), (H), or (O) ("other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor or the equity security holder relationship . . .") of § 157(b)(2). Debtors have not cited any cases from the Third Circuit to support these related propositions.[1]
The parties do cite and acknowledge the significance of Hatzel & Buehler v. Orange & Rockland Utilities, 107 B.R. 34 (D.Del.1989). In that case, debtor H & B commenced an adversary proceeding against O & R alleging several breach of contract and tortious interference claims based on New York state law. The court rejected H & B's argument that the proceeding was core under § 157(b)(2). Id. at 39-40. It observed that the claims arose independent and antecedent to the filing of the bankruptcy petition, were created by state law, did not involve any interpretation of the Bankruptcy Code, and were not otherwise related to the underlying pending bankruptcy proceeding. Furthermore, but for H & B's fortuitous filing of the petition, the claims would have been brought in a District or State court. Finally, because of the contingent nature of the litigation, the litigation would not necessarily form the basis of a distribution to the general creditor body, and therefore, the claims did not directly affect the administration of the estate. Id. at 36 & n. 1, 39-40.
The material facts here are identical to those in the H & B case. The Debtors' claims arise under state law, are independent and antecedent to the Chapter 11 filings, and do not require interpretation of the Bankruptcy Code. Defendants do not concede the merits of the claims, so that the claims are contingent. And absent the Chapter 11 petitions, the Debtors could have filed the same action in New York State Court. Indeed, Stackfleth filed a related action in that Court before the Debtors filed their Chapter 11 petitions. To the extent that Debtors attempt to distinguish H & B, their attempts are not persuasive, and I hold that the proceeding is non-core.
Duff further argues that the proceeding is not "related to" a case under title 11. 28 U.S.C.A. § 1334. A proceeding is "related" if "the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy." Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984). If Debtors are at all successful, additional funds will be available to pay creditors of the estate. The proceeding is related.
III. This Court Has Personal Jurisdiction Over The Defendants.
Stackfleth has moved to dismiss the proceeding for lack of personal jurisdiction. He presents no comprehensible argument in support of this motion, and in any event, the motion is without merit.
IV. This Court Will Not Rule On The Motion To Withdraw Reference.
Duff's briefing suggests this court should withdraw reference of the proceedings. First, no such motion was filed in this court. Moreover, only the United *100 States District Court can withdraw a matter referred to this court. 28 U.S.C.A. § 157(d).
V. Stackfleth's Request For Relief From Stay Is Not Before The Court.
Stackfleth's motion to dismiss includes a request for this court to lift the automatic stay to allow the New York litigation to proceed. No motion to lift the automatic stay was separately filed, nor was the motion properly noticed. Bankr.R. 4001(a); General Order No. 6 (Bankr.D.Del. Aug. 1, 1983). Thus that motion is not properly before this court and will not be considered.
VI. Mandatory Abstention Will Not Be Applied.[2]
The Defendants also move this court to abstain pursuant to 28 U.S.C.A. § 1334(c)(2) (mandatory abstention). Section 1334(c)(2) provides:
Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11 but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction.
As previously discussed, the proceeding is based upon State law, and is only related to a case under title 11.
Mandatory abstention does not apply, however, because an action has not previously been commenced in a State forum, as § 1334(c)(2) requires. In re Container Transport, Inc., 86 B.R. 804, 806 (E.D.Pa. 1988). Defendants initially rely upon the Saltzman litigation as satisfying this requirement, however, that action is in federal, not state court. Defendants also rely upon the New York litigation, however, they do not even contend that that action parallels the substance of the adversary proceeding Debtors have filed in this court. Therefore, the New York litigation does not constitute "an action" within the meaning of § 1334(c)(2).
VII. The Court Abstains pursuant to Section 1334(c)(1).
Defendants alternatively move this court to abstain pursuant to 28 U.S.C. § 1334(c)(1) (discretionary abstention). The parties agree the court should consider the following factors in determining whether to abstain:
1. The effect or lack thereof on the efficient administration of the estate if the court recommends abstention;
2. The extent to which state law issues predominate over bankruptcy issues;
3. The difficulty or unsettled nature of the applicable state law;
4. The presence of a related proceeding commenced in state court or other non-bankruptcy court;
5. The jurisdictional basis, if any, other than 28 U.S.C.A. § 1334;
6. The degree of relatedness or remoteness of the proceeding to the main bankruptcy case;
7. The substance rather than form of an asserted "core" proceeding;
8. The feasibility of severing state law claims from core bankruptcy matters to allow judgments to be entered in state court with enforcement left to the bankruptcy court;
9. The burden of the court's docket;
10. The likelihood that the commencement of the proceeding in bankruptcy court involves forum shopping by one of the parties;
11. The existence of a right to a jury trial; and
*101 12. The presence in the proceeding of nondebtor parties.
Shelly's Inc. v. Food Concepts of Wisconsin, Inc. (In re Shelly's Inc.), 97 B.R. 370, 372 (Bankr.S.D.Ohio 1989).
Factors one, two, four, five, eight, nine and eleven all favor abstention. Given this court's heavy docket, Debtors' claims can be administered in another court at least as quickly. There are no bankruptcy issues present in this adversary proceeding. At least one related proceeding has been commenced in a non-bankruptcy court. Debtors concede that they and Stackfleth are citizens of New York State, so that complete diversity as required by 28 U.S.C.A. § 1332 does not exist, nor is there any other independent ground for jurisdiction. Defendant Duff has indicated he will request a jury trial.
Factors three, six, seven, ten and twelve do not favor either party. The parties do not agree on the applicable law, so the nature of the state law is impossible to ascertain. And the court will not speculate as to Debtors' motive for filing these adversaries in this court.
In sum, consideration of the above twelve factors overwhelmingly favors abstention pursuant to § 1334(c)(1).
VIII. Conclusion
In light of the above rulings and recommendations, it is not necessary to discuss the other issues the parties raise. An order in accordance with this Memorandum Opinion is attached.
ORDER
AND NOW, May 11, 1992, for the reasons stated in the attached Memorandum Opinion,
IT IS ORDERED THAT:
1. The motion of the Defendants to dismiss for lack of subject matter jurisdiction is DENIED.
2. The motion of Defendant Stackfleth to dismiss for lack of personal jurisdiction is DENIED.
3. The motion of the Defendants for this court to abstain pursuant to 28 U.S.C.A. § 1334(c)(2) is DENIED.
4. The motion of the Defendants for this court to abstain pursuant to 28 U.S.C.A. § 1334(c)(1) is GRANTED.
NOTES
[1] Debtors have cited several cases from other jurisdictions. To the extent that they discuss the core/noncore issue, practically all these cases involved claims based solely on bankruptcy law, or a combination of bankruptcy and state law. Also, the core/non-core issue is an area where the Circuits' views are not in accord, and law from other Circuits have decreased significance here.
[2] The rulings in this Section and in Section VII are final orders. Bankr.R. 5011(b) (amended August 1, 1991). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/866919/ | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-1940
___________________________
Primitivo Alavez-Hernandez,
also known as Primitivo Alvaez-Hernandez,
also known as Jose Ortiz;
Ines Ruiz-Cruz,
also known as Maritza Solis-Padilla
lllllllllllllllllllllPetitioners
v.
Eric H. Holder, Jr., Attorney General
of the United States
lllllllllllllllllllllRespondent
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
Submitted: October 17, 2012
Filed: May 8, 2013
____________
Before MURPHY, BYE, and SHEPHERD, Circuit Judges.
____________
BYE, Circuit Judge.
Primitivo Alavez-Hernandez and Ines Ruiz-Cruz, married Mexican citizens,
petition for review of the denial of their applications for withholding of removal.
Once placed into removal proceedings, each conceded removability but applied for
withholding of removal. The immigration judge (IJ) denied the applications. The
Bureau of Immigration Appeals (BIA) dismissed Primitivo and Ines’s appeal of the
IJ’s denial. We deny review.
I
In 2006, the government placed Primitivo and Ines into removal proceedings.
Each conceded removability, but applied for withholding of removal.1 Primitivo and
Ines both claimed they had been persecuted in Mexico for their religion, nationality,
and membership in a particular social group. They specifically alleged Catholics in
their home village of San Miguel Aloapam (the Village) had persecuted them,
believing they and their families were Evangelical Christians.
After seeing Primitivo’s and Ines’s fathers associating with Evangelical
Christians, Catholic villagers began threatening and attacking members of Primitivo’s
and Ines’s families in the streets of the Village. Those victims who had been unable
to escape the attacks suffered bruises and scratches or having their clothing torn
away. Pet’rs’ App. at 21-23, 59, 101. The local police refused to accept Ines’s
family’s attempts to report the attacks. Village Catholics also deprived Primitivo’s
and Ines’s families of access to basic necessities. They barred the families from
buying supplies in Village stores or using the local buses to travel to buy supplies.
Hr’g Tr. 42, 84-85. The Catholic villagers also arranged with the local authorities to
cut off water and power to the families’ homes.2
1
Neither applied for asylum.
2
Both Primitivo’s and Ines’s families lived on small ranches near the Village
on which they grew crops and raised animals primarily for their own consumption.
-2-
Both families eventually left the Village. Primitivo’s family relocated directly
to Oaxaca City. Ines’s family moved first to their ranch, remaining there for at least
five months even though the ranch also lacked access to water and power. Hr’g Tr.
87-88. Ines’s family then relocated to Oaxaca City. After the families left the
Village, their land was seized and put to other uses. Hr’g Tr. 44-45, 107.
Primitivo and Ines also claimed their families’ ethnicity had caused them to live
in poverty in Oaxaca City. Both families are Zapotec and communicated primarily
in Zapoteca, speaking very little Spanish. Their limited ability to communicate in
Spanish significantly restricted their employment opportunities in Oaxaca City. Hr’g
Tr. 68-69, 88. Members of the families were, however, able to obtain employment,
and many continue to reside in Oaxaca City. Hr’g Tr. 59-60, 64-67, 97, 101-04.
Primitivo and Ines lived in Oaxaca City for approximately nine years. They
both joined and eventually married in an Evangelical Christian church there. No one
attacked Primitivo and Ines in Oaxaca City or interfered with their attempts to
worship as Evangelical Christians.
In 1997, Primitivo entered the United States without inspection in search of
work. Ines and the couple’s firstborn followed. They currently have four children,
one of whom has a respiratory condition which requires treatment with medication.
At the evidentiary hearing, the IJ heard the testimony of Primitivo, Ines, and
their expert witness, all of whom the IJ found to be credible. According to the expert
witness, Catholics control large sections of Mexico and discriminate against
Evangelical Christians, who are in the minority. Hr’g Tr. 121. In less populated
areas, the Catholic majority effectively has the authority to charge and kill
Evangelical Christians. Hr’g Tr. 121. In the larger cities like Oaxaca City, religious
Hr’g Tr. 39-40, 87. Ines’s family also had a small home in the Village. Hr’g Tr. 87.
-3-
discrimination exists but is not as severe and Evangelical Christians can practice their
religion in large, well-established churches. Hr’g Tr. 123-24.
The IJ denied the applications for withholding of removal, concluding neither
the attacks in the Village nor the economic hardship in Oaxaca City had been severe
enough to constitute persecution. The IJ also concluded the couple could avoid any
threat of future persecution by relocating to Oaxaca City. Primitivo and Ines
appealed. The BIA agreed with the IJ’s conclusions but also considered the other
detrimental conditions in the Village, which it concluded had not constituted
persecution either. The BIA dismissed the appeal. Primitivo and Ines petitioned for
review.
II
We review a denial of an application for withholding of removal under the
substantial evidence standard. Mouawad v. Gonzales, 485 F.3d 405, 412 (8th Cir.
2007) (citing Wijono v. Gonzales, 439 F.3d 868, 872 (8th Cir. 2006)). “Where, as
here, the BIA adopts the IJ’s decision and adds its own reasoning, we review both
decisions together.” Makatengkeng v. Gonzales, 495 F.3d 876, 881 (8th Cir. 2007)
(quoting Quomsieh v. Gonzales, 479 F.3d 602, 605 (8th Cir. 2007)). Under the
substantial evidence standard, “[t]he Board’s findings of fact will be disturbed only
if unsupported by substantial evidence.” Ateka v. Ashcroft, 384 F.3d 954, 957 (8th
Cir. 2004) (citing Negele v. Ashcroft, 368 F.3d 981, 982 (8th Cir. 2004)). “We
review the Board’s conclusions of law de novo, with substantial deference to its
interpretations of statutes and regulations administered by the agency.” Id. (citing
Regalado-Garcia v. INS, 305 F.3d 784, 787 (8th Cir. 2002)). We “will reverse the
decision [below] only if the record compels the conclusion that [the applicant]
qualified for withholding of removal.” Mouawad, 485 F.3d at 412 (citing Wijono,
439 F.3d at 872).
-4-
“To qualify for withholding of removal, an applicant must show a clear
probability that his or her life or freedom would be threatened in the proposed country
of removal on account of race, religion, nationality, membership in a particular social
group, or political opinion.” Id. at 411 (internal citations and quotation marks
omitted). “[T]he applicant may show past persecution on the basis of one of the
protected grounds listed above, thus creating a rebuttable presumption that his life or
freedom would be threatened upon removal.” Id. at 411-12 (citing 8 C.F.R.
§ 1208.16(b)(1)). In the alternative, the applicant may show “‘it is more likely than
not that he or she would be persecuted’ upon removal based upon one of the protected
grounds. . . .” Id. at 412 (quoting 8 C.F.R. § 1208.16(b)(2)).
Primitivo and Ines first contend the BIA erred in concluding the conditions in
Mexico had not been severe enough to constitute past persecution. This is a question
of law we review de novo. See Cubillos v. Holder, 565 F.3d 1054, 1058-59 (8th Cir.
2009) (“The BIA made a legal conclusion as to whether the record facts established
persecution.”).
The IJ and the BIA concluded the physical attacks in the Village had not been
severe enough to rise to the level of persecution because the attacks had not been life
threatening. We agree. Persecution “is an extreme concept that excludes low-level
intimidation and harassment.” Bracic v. Holder, 603 F.3d 1027, 1034 (8th Cir. 2010)
(quoting Sholla v. Gonzales, 492 F.3d 946, 951 (8th Cir. 2007)). There is no
evidence the attacks in the Village ever threatened the victims’ lives. In fact, there
is no evidence the attacks resulted in any injury more life threatening than bruises and
scratches or the victim having his or her clothing forcibly removed.
The BIA also concluded the other detrimental conditions in the Village had not
been severe enough to constitute persecution. The BIA acknowledged Primitivo and
Ines had been “beaten, threatened, denied of basic services such as water and
electricity, deprived of food, access to land, and housing in their hometown.” Pet’rs’
-5-
Add. at 2. The BIA then noted Primitivo and Ines “however had other sources
(although not steady) of income and housing (albeit not preferable) available once
they moved to Oaxaca City.” Pet’rs’ Add. at 2. In support of its reasoning, the BIA
cited Ahmed v. Ashcroft, 396 F.3d 1011, 1014 (8th Cir. 2005), for the proposition
that “economic discrimination [is] not sufficiently harsh to constitute a threat to life
or freedom where private employment [is] available.” Pet’rs’ Add. at 2. We do not
read Ahmed to hold the availability of housing and employment in one place may
lessen the severity of an applicant having been deprived of food, water, electricity,
and access to land in another.3 Ahmed holds merely that proof an applicant’s
government decided to allocate public jobs by geographic region, without more, is
insufficient to establish economic persecution. Ahmed, 396 F.3d at 1013.
Notwithstanding the BIA’s flawed reasoning, the record weighs against
concluding the conditions in the Village were severe enough to constitute
persecution. In this circuit, we require detrimental conditions be severe enough to
threaten an applicant’s life or freedom before they will constitute persecution. See
Beck v. Mukasey, 527 F.3d 737, 740 (8th Cir. 2008) (economic restrictions can
constitute persecution if severe enough to constitute a real threat to life or freedom).
At the evidentiary hearing, Ines testified her family lived on their ranch for at least
five months, even though the ranch lacked access to food, water, and electricity, the
same basic necessities denied to them in the Village. Hr’g Tr. 87-88. The length of
time Ines’s family was able to live on the ranch without access to the same necessities
they had been deprived of in the Village indicates the deprivation had not been severe
enough to be life threatening. Nor is there any evidence being deprived of basic
necessities made the attacks severe enough to be life threatening. See Ngengwe v.
Mukasey, 543 F.3d 1029, 1037 (8th Cir. 2008) (finding as error the failure to consider
3
Because we conclude the BIA’s reasoning does not support its conclusion
regarding past persecution, we need not consider the argument the BIA’s reasoning
erroneously conflated the analysis of past persecution with that of reasonable
relocation.
-6-
the cumulative severity of alleged events) (citation omitted). Accordingly, Primitivo
and Ines have not proven the conditions in the Village rose to the level of persecution,
even when the conditions there are viewed together with the street attacks.
In addition, even assuming for the sake of argument Primitivo and Ines had
proven they had suffered past persecution in the Village, they would still not be
entitled to withholding of removal. An applicant is precluded from proving a threat
of future persecution by a finding the applicant can reasonably relocate within the
country to avoid it. 8 C.F.R. §§ 1208.16(b)(1)(B), 1208.16(b)(2). The BIA
concluded Primitivo and Ines could avoid any future persecution in Mexico by
relocating to Oaxaca City. We agree. According to Primitivo and Ines’s expert’s
testimony, the religious discrimination in Mexico is not as severe in urban areas like
Oaxaca City as it is in the Catholic dominated rural regions. Hr’g Tr. 121, 123-24.
The nine years in which Primitivo and Ines were able to live in Oaxaca City without
being attacked and without interference in their choice to worship as Evangelical
Christians also supports this finding.
Finally, Primitivo and Ines contend relocation to Oaxaca City would not be
reasonable. The BIA concluded relocation to Oaxaca City would be reasonable
because the conditions there do not constitute persecution. Whether relocation is
reasonable, however, is guided not by whether the applicant would face persecution
at the proposed area of relocation but whether the applicant would be subject to the
threat of other serious harm there. 8 C.F.R. § 208.16(b)(3) (emphasis added).
Primitivo and Ines argue they would suffer significant hardship in Oaxaca City
because they have no savings, they would have limited employment opportunities,
and they fear they would be unable to obtain needed medicine for their daughter
there. The arguments regarding Primitivo and Ines’s lack of savings and the limited
employment opportunities in Oaxaca City are unpersuasive. The record indicates
Primitivo’s and Ines’s families first relocated to Oaxaca City with a similar lack of
-7-
financial resources but that members of their families have since made lives for
themselves and continue to reside there. Hr’g Tr. 42-43, 59-60, 88-92, 101-04. In
addition, the assertion they will have limited employment opportunities is based in
part on their previous experiences in Oaxaca City, when it was the inability to
communicate in Spanish which limited Primitivo’s and Ines’s employment options.
However, each demonstrated by testifying in Spanish at the evidentiary hearing that
their ability to speak Spanish has grown significantly since they left Mexico. Finally,
Primitivo and Ines only speculate that the medicine for their daughter’s respiratory
condition is not available in Oaxaca City. Such speculation is not enough to
overcome the evidence that members of Primitivo’s and Ines’s families have been
able to establish lives there. For Primitivo and Ines to relocate to Oaxaca City to
avoid possible persecution as Evangelical Christians in other parts of Mexico would
be reasonable.4
Based on the foregoing, we cannot conclude that the record compels a finding
that Primitivo and Ines are eligible for withholding of removal.
III
The petition for review is denied.
______________________________
4
Because we conclude Primitivo could reasonably relocate to avoid any future
persecution in Mexico, we need not review the BIA’s determination that Primitivo
and Ines failed to prove the existence of a threat of future persecution there.
-8- | 01-03-2023 | 05-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/866990/ | Case: 12-20404 Document: 00512235457 Page: 1 Date Filed: 05/08/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 8, 2013
No. 12-20404 Lyle W. Cayce
Summary Calendar Clerk
DANNY R. HORTON,
Plaintiff-Appellant
v.
CCA PROPERTIES OF AMERICA, LLC, also known as Correction
Corporation of America (CCA),
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CV-2677
Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Danny R. Horton (“Horton”) appeals the district court’s
grant of summary judgment in favor of defendant-appellee CCA Properties of
America, LLC, also known as Corrections Corporation of America (“CCA”).
Horton alleges that CCA, a for-profit corporation that managers and operates
correctional facilities, discriminated against him on the basis of age by demoting
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 12-20404 Document: 00512235457 Page: 2 Date Filed: 05/08/2013
No. 12-20404
and discharging him, created a hostile work environment, and retaliated against
him. He brought his claims pursuant to the Age Discrimination in Employment
Act (“ADEA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and 42
U.S.C. § 1982. The district court granted CCA’s motion for summary judgment.
We affirm.
FACTS AND PROCEEDINGS
A.
Prior to working for CCA, Horton was employed in the Texas Prison
System for the Texas Department of Criminal Justice for thirty-three years.
During six of those years, he worked as a Warden for a correctional facility. In
December 2007, when Horton was fifty-two years old, CCA hired Horton as an
Assistant Warden at CCA’s San Diego Correctional Facility in San Diego,
California. The facility housed individuals being detained for illegal entry into
the United States, the majority of whom had committed no other crime.
After fifteen months, Horton applied for a promotion. In April 2008, after
an application process, CCA hired Horton as Warden of CCA’s Cimarron
Correctional Facility (“Cimarron”) in Cushing, Oklahoma. Cimarron was a
medium-security facility that housed inmates who presented a higher risk to
security than the detainees at the San Diego Correctional Facility. Horton
asserts that Cimarron was “in a state of complete system failure” when he was
hired. During the nine months he worked as Warden, Cimarron suffered from
significant management, safety, and security issues. In January 2009, CCA
conducted a facility review because in the thirty days preceding the review,
Cimarron experienced numerous finds of contraband, an attempted suicide, a
serious assault, and loss of a Class A tool that was recovered only after an
inmate revealed its location. The facility review team identified numerous
failures in communication, tool control, control of the security equipment and
armory, key control, inspections, and unit management. Daren Swenson
2
Case: 12-20404 Document: 00512235457 Page: 3 Date Filed: 05/08/2013
No. 12-20404
(“Swenson”), the Managing Director for CCA’s Facility Operations, stated in his
affidavit that he informed Horton of the review’s results, that the findings were
not acceptable, and that changes needed to occur immediately. Horton insists
that he was never informed that his performance was deficient.
On January 15, 2009, approximately one week after the facility review was
completed, CCA conducted its annual operational audit of the facility. The
auditors again found numerous deficiencies in its operation and management.
Swenson stated in his affidavit that he informed Horton that he had lost
confidence in Horton’s ability to be an effective warden and that he placed
Horton on administrative leave with pay pending a determination of whether
Horton should continue his employment with CCA. Plaintiff asserts that he was
never made aware of his performance deficiencies.
On January 26, 2009, Swenson placed Horton on administrative leave.
Swenson informed Horton that CCA would try to find an assistant warden
position. On February 11, 2009, Swenson informed Horton that there were no
assistant warden positions anywhere in CCA. Horton alleges that this statement
was false because the Cimarron assistant warden had recently been discharged,
but has not provided documentation to support this assertion. Swenson told
Horton that there was a Chief of Security position available in Dallas, Texas.
The position is a lower paying than an assistant warden position. Horton
declined to interview for the job.
On February 2, 2009, while on administrative leave, Horton telephoned
Brian Collins (“Collins”), the Vice President of CCA’s Facility Operations to find
out why he had been demoted. Horton alleges that Collins told him that his
“management skills were not suited for the younger generation joining the
workforce now, it’s not the same when we were coming along.” Horton claims
that Collins also suggested that Horton “look at going back to school and getting
3
Case: 12-20404 Document: 00512235457 Page: 4 Date Filed: 05/08/2013
No. 12-20404
some more management skills, some up-to-date management skills.” CCA denies
that Collins made these statements.
On February 11, 2009, Swenson informed Horton that CCA was preparing
a severance package for him. On February 19, 2009, Collins sent Horton a letter
with the enclosed Separation Agreement. The letter stated that “[t]his
agreement is based on your decision to resign rather than accept our offer of a
position other than Warden at a facility other than Cimarron.” The letter also
“confirm[ed] that CCA accepts [Horton’s] resignation effective February 27,
2009.” The letter further noted that the severance agreement did not preclude
Horton for applying for any vacancies that arose in any CCA location other than
Cimarron. Horton responded to Collins by email and told Collins he had not
resigned. Collins sent a response email, explaining:
We made the decision that you were not able to continue in the
position of Warden at Cimarron based on numerous and repeated
performance failures. You have not disputed that decision. Normally
when such a decision is made there is only one option: termination
of employment whether by involuntary separation or voluntary
resignation. In your case, we looked for other options. However, as
Daren Swenson advised you and as you acknowledge below, there
are no available Assistant Warden positions in Business Unit I.
Nonetheless, in an effort to find an alternative position for you, we
identified a Chief of Security position in Texas and advised you that
Jimmy Turner was willing to interview you for the position. You
refused to consider that option. Since that was the only option we
identified, your refusal to consider it amounts to resignation
regardless of whether you actually used the term ‘resignation’
during your conversations with Daren. We did not offer you and we
are not in the position of being able to carry you on CCA payroll
until a position which you deem acceptable becomes available.
In the same email, Collins encouraged Horton to sign the separation agreement
and told Horton that he would be terminated either way. Horton did not sign the
agreement, and CCA terminated his employment with an effective date of
February 27, 2009.
4
Case: 12-20404 Document: 00512235457 Page: 5 Date Filed: 05/08/2013
No. 12-20404
After terminating Horton’s employment, CCA hired Joseph Taylor to be
Warden of Cimarron. He was forty-nine years old when he was hired. He had a
Bachelor’s degree in criminal justice and a Masters degree in counseling. Prior
to joining CCA, Taylor worked for the Arizona Department of Corrections for
over twenty years, and worked as Warden for two to three years. He then was
promoted to the position of Assistant Director, in charge of all the Department’s
facilities. He then went to work as Assistant Warden at CCA’s Florence
Correctional Facility in Florence, Arizona. After one year, he was promoted to
become Warden at Cimarron.
B.
On July 28, 2009, Horton filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC”). The EEOC issued Horton a
“right to sue” letter on April 29, 2010. Horton filed a suit in district court on July
28, 2010, and thereafter filed two amended complaints. In his second amended
complaint, Horton asserted (1) an age discrimination claim under ADEA; (2) a
hostile work environment claim under ADEA and Title VII; and (3) a retaliation
claim under 42 U.S.C. § 1982. On September 30, 2011, CCA filed a motion for
summary judgment on all Horton’s claims. After receiving Horton’s reply and
allowing him to file a sur-reply, the district court granted CCA’s motion for
summary judgment on May 18, 2012. Horton now appeals.
STANDARD OF REVIEW
We review a district court’s grant of summary judgment de novo, applying
the same standard as the district court. Addicks Servs., Inc. v. GGP-Bridgeland,
LP, 596 F.3d 286, 293 (5th Cir. 2010). Summary judgment is appropriate if the
record shows that “there is no genuine dispute as to any material fact.” Fed. R.
Civ. P. 56(a). A fact is material if it “might affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
5
Case: 12-20404 Document: 00512235457 Page: 6 Date Filed: 05/08/2013
No. 12-20404
reviewing a grant of summary judgment, we examine the evidence in the light
most favorable to the nonmoving party. Addicks Servs., Inc., 596 F.3d at 293.
The moving party bears the burden of demonstrating that summary
judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the
nonmoving party would bear the burden of proof at trial, the moving party may
meet its burden by showing “that there is an absence of evidence to support the
nonmoving party’s case.” Id. at 325. The burden then shifts to the nonmoving
party “to go beyond the pleadings and by her own affidavits, or by the
‘depositions, answers to interrogatories, and admissions on file,’ designate
‘specific facts showing that there is a genuine issue for trial.’” Id. at 324. While
“any reasonable inferences are to be drawn in favor of [the nonmoving] party,
Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 507 (5th Cir. 2003),
summary judgment should not be denied “if the nonmoving party rests merely
upon conclusory allegations, improbable inferences, and unsupported
speculation.” Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994) (quoting Krim
v. BancTexas Grp., Inc., 989 F.2d 1435, 1449 (5th Cir. 1993)). Moreover, “[t]he
mere existence of a scintilla of evidence in support of the plaintiff’s position will
be insufficient; there must be evidence on which the jury could reasonably find
for the plaintiff.” Anderson, 477 U.S. at 252.
DISCUSSION
A.
Pursuant to the ADEA, an employer may not “discharge any individual or
otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s age.”
29 U.S.C. § 623(a)(1). A plaintiff seeking to establish a claim of age
discrimination may put forward either direct or circumstantial evidence of
discrimination. See Berquist v. Washington Mut. Bank, 500 F.3d 344, 349 (5th
Cir. 2007). Because Horton did not produce direct evidence of age
6
Case: 12-20404 Document: 00512235457 Page: 7 Date Filed: 05/08/2013
No. 12-20404
discrimination,1 he had to put forth a prima facie case of age discrimination by
showing that “(1) he was discharged; (2) he was qualified for the position; (3) he
was within the protected class at the time of 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.” Jackson v. Cal-Western
Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010) (quoting Berquist, 500 F.3d
at 349). Once a prima facie case has been established, the burden shifts to the
employer to provide a “legitimate, non-discriminatory reason” for his
termination. Berquist, 500 F.3d at 349. The burden then reverts to Horton to
show that the defendant’s reason is merely pretextual. Jackson, 602 F.3d at 378.
The district court determined that Horton did not establish a prima facie
case of age discrimination because he failed to demonstrate that he was qualified
for the position because although his extensive work experience qualified him
to be hired, the facility review and annual audit provided CCA with additional
information about Horton’s management skills that demonstrated that he was
not qualified for the position of Warden at Cimarron. The district court also
found that Horton did not satisfy the fourth prima facie prong because Horton’s
replacement was also in the protected class and only five years younger than
Horton, which was not a sufficiently significant age difference. See 29 U.S.C. §
631(a); O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312-13 (1996)
1
In his opposition to the motion for summary judgment, Horton asserted that Collins’
alleged statements during the February 2, 2009 telephone call are direct evidence of age
discrimination. The district court disagreed, finding that the statement could, at best, support
an inference of discrimination but was not direct evidence of it. See West v. Nabors Drilling,
USA, Inc., 330 F.3d 379, 384 n.3 (5th Cir. 2003). Horton does not challenge this finding in his
appeal brief and therefore waives it. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
Moreover, the district court’s decision was not in error. Collins’ alleged statements were not
“direct and unambiguous [such that] a reasonable jury [would] conclude without any
inferences or presumptions that age was an impermissible factor in the decision to terminate
the employee.” Moss v. BMC Software, Inc., 610 F.3d 917, 929 (5th Cir. 2010) (quoting EEOC
v. Tex. Instruments, Inc., 100 F.3d 1173, 1181 (5th Cir. 1996)). They therefore cannot be
considered direct evidence of discrimination.
7
Case: 12-20404 Document: 00512235457 Page: 8 Date Filed: 05/08/2013
No. 12-20404
(holding that in the age discrimination context, an inference of discrimination
“cannot be drawn from the replacement of one worker with another worker
insignificant younger”).
We do not reach these issues because even if Horton established a prima
facie case of age discrimination, summary judgment would still be appropriate.
CCA put forth a “legitimate, non-discriminatory reason” for Horton’s
termination, and Horton has not offered evidence of pretext. See Berquist, 500
F.3d at 349. CCA offered evidence that Horton was demoted because he had
mismanaged the Cimarron facility. After nine months under Horton’s
management, the facility suffered from serious management, communication,
and security issues, which culminated in at least two severe injuries to inmates
and rampant problems with contraband. The facility review and annual audit
identified numerous issues throughout the facility, including miscommunication
and power struggles between management and non-management employees,
faulty security procedures, improper or lack of training, improper use of inmates
as employees, and general mismanagement. The facility review team found that
Horton lacked the necessary initiative, leadership, and management to run
Cimarron. Horton does not contradict the results of these assessments. He
merely alleges, without supporting evidence, that the facility was in bad shape
when he arrived. Even accepting his self-serving assertion, the review and audit
results demonstrate that he was not capable of performing the job for which he
was hired: to effectively run Cimarron, a medium-security detention facility.
Despite these failures, CCA still did not fire Horton. They looked for
another job for him, and offered to interview him for a chief of security position.
Horton declined. Because he refused this open position, CCA formally
terminated him.
Horton has not shown that the CCA’s reasons are pretextual. To support
his claim of pretext, he points to Collins’ alleged comments and the fact that
8
Case: 12-20404 Document: 00512235457 Page: 9 Date Filed: 05/08/2013
No. 12-20404
Taylor, his replacement, has less work experience than Horton. Even accepting
as true Horton’s assertion that Collins told him over the telephone that Horton’s
“management skills were not suited for the younger generation joining the
workforce now,” and noting that Horton may want to return to school to get
“some up-to-date management skills,” this does not demonstrate pretext. “In
order for an age-based comment to be probative of an employer’s discriminatory
intent, it must be direct and unambiguous, allowing a reasonable jury to
conclude without any inferences or presumptions that age was a determinative
factor in the decision to terminate the employee.” Wyvill v. United Cos. Life Ins.
Co., 212 F.3d 296, 304 (5th Cir. 2000). Collins’ alleged comments are not either
direct or unambiguous evidence of discriminatory intent. Collins did not tell
Horton he was being demoted because of his age, but rather because he lacked
the necessary management skills to effectively manage his staff. With regard to
his replacement, Taylor had twenty years of experience in the Arizona
Department of Corrections, which is less than Horton’s thirty-three years of
experience in the Texas Prison System. However, Taylor held a higher position
of authority in Arizona than Horton held in Texas, having been promoted to
Assistant Director in charge of all of the Arizona Department of Corrections
facilities. Moreover, Taylor’s qualifications are not relevant to the reasons for
Horton’s dismissal. Horton has failed to demonstrate that he was demoted for
any reason other than the systemic, widespread management and security
failures at Cimarron while he was warden there; and failed to demonstrate that
he was fired for any reason other than the fact that he refused to interview for
the only position open in CCA for which he was qualified.
B.
Horton also asserts that the district court erred in granting summary
judgment to CCA on his hostile work environment claim. Hostile work
environment claims are cognizable under the ADEA. Dediol v. Best Chevrolet,
9
Case: 12-20404 Document: 00512235457 Page: 10 Date Filed: 05/08/2013
No. 12-20404
Inc., 655 F.3d 435, 441 (5th Cir. 2011). However, any ADEA claim must first be
administratively exhausted. See 29 U.S.C. § 626(d) (prohibiting the filing of any
civil action pursuant to the ADEA until “after a charge alleging unlawful
discrimination has been filed with the Equal Employment Opportunity
Commission”). Horton does not address or contest the district court’s conclusion
that he failed to exhaust his hostile work environment claim.
A claim is sufficiently exhausted where it falls within “the scope of the
EEOC investigation which ‘can reasonably be expected to grow out of the charge
of discrimination.’” Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir. 2006) (quoting
Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)). On
Horton’s EEOC Charge of Discrimination form, he marked the “age”
discrimination box. He explained that he was demoted on January 28, 2009, and
terminated on February 27, 2009. He cited Collins’ alleged explanation for the
demotion and the fact that he was replaced Taylor, “a younger employee” in
support of his age discrimination claim, and discussed the fact that he was told
there were no available assistant warden positions. At no time did he assert that
he faced a hostile work environment. Indeed, because he was placed on
administrative leave with pay on January 28, 2009 and remained on leave until
he was terminated, he was not in the workplace and could not have faced a
hostile work environment during the time period he referenced in his charge.
Because a hostile work environment charge could not reasonable be expected to
have grown out of his charge of age discrimination, the claim was not exhausted.
C.
Horton also asserts that the district court erred in granting summary
judgment to CCA on his claim of retaliation, but does not address the district
court’s conclusion that such a claim is not cognizable under 42 U.S.C. § 1982 and
that he failed to exhaust any ADEA-based claim of retaliation. Horton’s second
amended complaint asserted a claim of retaliation only in violation of 42 U.S.C.
10
Case: 12-20404 Document: 00512235457 Page: 11 Date Filed: 05/08/2013
No. 12-20404
§ 1982. The district court found that retaliation based on complaints of age
discrimination is not cognizable under § 1982 and correctly explained that the
case upon which Horton relies, Gomez-Perez v. Potter, 553 U.S. 474 (2008),
establishes only that federal employees may bring retaliation claims based on
complaints of age discrimination under the ADEA, not that retaliation based on
complaints of age discrimination are cognizable under § 1982. See id. at 491.
Horton’s second amended complaint did not assert a claim of retaliation
pursuant to the ADEA. Even if it did, the claim would fail for failure to exhaust
administrative remedies. Horton did not check the box for retaliation in his
EEOC charge, assert that he was demoted or fired as retaliation, or assert
having taken any actions that would have provoked retaliation. A retaliation
claim cannot be said to have been reasonably expected to grow out of Horton’s
charge of age discrimination, and therefore was not exhausted. See Pacheco, 448
F.3d at 789.
CONCLUSION
For the aforementioned reasons, we AFFIRM the district court’s grant of
summary judgment in favor of the defendant.
11 | 01-03-2023 | 05-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/866991/ | Case: 12-40919 Document: 00512235190 Page: 1 Date Filed: 05/08/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 8, 2013
No. 12-40919
Summary Calendar Lyle W. Cayce
Clerk
ANTONIO M. FUENTES, SR.,
Plaintiff-Appellant
v.
JIM BJORNSON,
Defendant-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:10-CV-478
Before BENAVIDES, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Antonio M. Fuentes, Sr., Texas prisoner # 1020350, appeals the summary
dismissal of his 42 U.S.C. § 1983 suit against physical therapist Jim Bjornson
for damages allegedly resulting from ill-fitting medical footwear. The magistrate
judge recommended granting summary judgment in favor of Bjornson based in
part upon a determination that Fuentes’s claims arising before July 6, 2008,
were barred by the statute of limitations. With respect to the remaining claim--
that Bjornson instructed his assistant not to use a measuring tool to measure
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 12-40919 Document: 00512235190 Page: 2 Date Filed: 05/08/2013
No. 12-40919
Fuentes’s foot during an August 2008 appointment--the magistrate judge
determined that it was meritless because there were no damages, as Fuentes
admitted that the boots ordered during the appointment fit correctly. After a de
novo review, the district court adopted the magistrate judge’s report and
recommendation and granted the motion for summary judgment.
Proceeding pro se, Fuentes does not address the timeliness of his claims
in his opening brief. Nor does he dispute the determination that no damages
resulted from Bjornson’s actions during the August 2008 appointment. Instead,
Fuentes asserts generally that Bjornson was deliberately indifferent to his
serious medical needs because Bjornson knowingly failed to address his footwear
issues for 19 months. Fuentes also discusses a lawsuit he filed against the
medical clinic in the early 1990s and an allegation that Bjornson attempted to
assault him at that time.
Although pro se briefs are afforded liberal construction, see Haines v.
Kerner, 404 U.S. 519, 520 (1972), even pro se litigants must brief arguments in
order to preserve them. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
This court “will not raise and discuss legal issues that [the appellant] has failed
to assert.” Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748
(5th Cir. 1987). The failure by Fuentes to address the district court’s time bar
ruling in his opening brief “is the same as if he had not appealed that judgment.”
Id. He likewise abandons any challenge to the district court’s determination
that no damages resulted from the August 2008 appointment. See id. While
Fuentes does address the district court’s time bar ruling to some extent in his
reply brief, “[a]rguments raised for the first time in a reply brief, even by pro se
litigants such as [Fuentes], are waived.” United States v. Jackson, 426 F.3d 301,
304 n.2 (5th Cir. 2005).
AFFIRMED.
2 | 01-03-2023 | 05-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1555065/ | 36 So.3d 84 (2010)
JONES
v.
THE FLORIDA BAR.
No. SC10-797.
Supreme Court of Florida.
April 29, 2010.
Decision Without Published Opinion Mandamus dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1556743/ | 30 So.3d 137 (2009)
Jennifer JONES, Individually and On Behalf of Her Minor Child, Haley Jones
v.
Shannon JONES, ABC Insurance Company and Cobe Cardiovascular Inc., et al.
No. 09-CA-757.
Court of Appeal of Louisiana, Fifth Circuit.
December 29, 2009.
Michelle Mayne Davis, Mark G. Duncan, Attorneys at Law, Mandeville, LA, for Plaintiff/Appellant.
Vincent J. Booth, Attorney at Law, New Orleans, LA, for Defendant/Appellee.
Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
*138 WALTER J. ROTHSCHILD, Judge.
Plaintiff, Jennifer Brunelle, formerly known as Jennifer Jones, appeals the denial of her Petition to Nullify Orders and Judgment. For the following reasons, we affirm.
PROCEDURAL HISTORY
On June 3, 2009, Jennifer Brunelle filed a Petition to Nullify Orders and Judgments on behalf of herself and her minor child, Haley Jones, case number 673-912 in the 24th Judicial District Court ("the nullity action"), seeking to annul a judgment rendered by another division of the trial court on April 21, 2009. In her petition, Ms. Brunelle asserts that on February 22, 1999, she and Shannon Jones, who were married at the time, commenced a lawsuit entitled Shannon Jones, et al. v. ABC Insurance Company, case number 535-525 in the 24th Judicial District Court ("the personal injury action"), seeking damages for injuries sustained by their daughter, Haley, during a surgical procedure on February 20, 1998. According to plaintiff, she and Mr. Jones were divorced on March 24, 1999 after the lawsuit was filed. Ms. Brunelle further states that on February 9, 2006, she and Mr. Jones filed a Petition for Confirmation of Natural Tutrix and Natural Undertutor of Haley, case number 628-080 in the 24th Judicial District Court ("the tutorship action"), and the trial judge issued letters of tutorship naming Ms. Brunelle as the natural tutrix of Haley and Mr. Jones as the undertutor.
According to Ms. Brunelle, after two defendants in the personal injury action agreed to settle the claims against them for $8.25 million, Mr. Jones filed a Motion to Establish a Supplemental Trust under 42 U.S.C. § 1396p(d)(4)(A) in the personal injury action, and on April 21, 2009, the trial judge issued a judgment granting the motion to establish the Haley Jones Supplemental Care Trust and naming Franklin Templeton Bank & Trust as the trustee. It is this April 21, 1999 judgment that Ms. Brunelle seeks to annul.[1]
In her Petition to Nullify Orders and Judgments, Ms. Brunelle claims that the April 21, 2009 judgment is an absolute nullity, because the trial judge lacked subject matter jurisdiction to render this judgment. She contends that establishment of a trust could only be done in a tutorship proceeding, that proper venue for a tutorship proceeding in this case is St. Tammany Parish or East Baton Rouge Parish, pursuant to LSA-C.C.P. art. 4031(B), and that venue in a tutorship proceeding is jurisdictional and non-waivable.
On July 7, 2009, Mr. Jones filed a Peremptory Exception of No Right of Action and an Answer to the petition, asserting that the establishment of the trust was not required to be done in a tutorship proceedings and that the division of the trial court in which the personal injury action was pending was the proper court for establishment of the trust.
On July 15, 2009, the Petition to Nullify Orders and Judgments came for hearing before the trial judge. After considering the arguments of counsel, the trial judge denied Ms. Brunelle's Petition to Nullify Orders and Judgments and signed a written judgment denying the petition on that *139 date. It is from this judgment that plaintiff appeals.
DISCUSSION
On appeal, Ms. Brunelle argues that the trial court erred in denying the Petition to Nullify the April 21, 2009 judgment under LSA-C.C.P. art. 2002(A)(3), because the trial court lacked subject matter jurisdiction to establish the trust for the benefit of Haley and to appoint a trustee. She claims that proper venue and thus, subject matter jurisdiction, lies in the parish where the minor's parents were divorced, i.e. East Baton Rouge Parish, or the parish of the minor's domicile and residence, i.e. St. Tammany Parish, pursuant to LSA-C.C.P. art. 4031(B).
Mr. Jones responds that the Petition for Nullity was properly denied, because the April 21, 2009 judgment is not a final judgment, and the Louisiana Code of Civil Procedure provisions regarding actions for nullity apply only to final judgments. LSA-C.C.P. art. 2001 through 2006. Mr. Jones further asserts that Ms. Brunelle filed a writ application with this Court, writ no. 09-C-690, seeking review of the April 21, 2009 judgment rendered in the personal injury action, and the writ application was denied by this Court on October 8, 2009.
After reviewing the record in this matter, it is impossible for this Court to say that the trial court erred in denying Ms. Brunelle's Petition to Nullify Order and Judgments. The record before us does not contain a copy of the April 21, 2009 judgment or any other documents pertaining to the personal injury action. Furthermore, no evidence or exhibits were introduced or submitted at the hearing in this matter. Thus, the record contains no exhibits, documentation, or evidence for this Court to review.
Mr. Jones contends that the judgment complained of is not final and cannot be the subject of a nullity action. Without any evidence pertaining to the personal injury action, we cannot determine if all the merits of that case have been adjudicated and whether or not the judgment complained of is final.
A Court of Appeal is a court of record, which must limit its review to evidence in the record before it and render its judgment upon the record on appeal. LSA-C.C.P. art. 2164; Hover v. Farber, 05-613, p. 3 (La.App. 5 Cir. 1/31/06), 922 So.2d 637, 638. The record on appeal is that which is sent by the trial court to the appellate court and includes pleadings, court minutes, transcripts, jury instructions, judgments, and other rulings, unless otherwise designated. LSA-C.C.P. art. 2128; Reed v. Peoples State Bank of Many, 36,531, p. 4-5 (La.App. 2 Cir. 3/5/03), 839 So.2d 955, 958. Memoranda and exhibits which were not filed into evidence in the trial court are not part of the record on appeal. Id.
It is well-settled that the appellate briefs of the parties are not part of the record on appeal, and this Court has no authority to consider facts referred to in appellate briefs if they are not in the record that is lodged in the appellate court. Austin v. State Farm Ins. Co, 06-808, p. 5 (La.App. 5 Cir. 3/13/07), 956 So.2d 13, 15, writ denied, 07-0761 (La.6/1/07), 957 So.2d 178. If a party's brief asserts facts which are not in the record and refers to exhibits which have not been filed into evidence in the trial court, an appellate court may not consider those memoranda or exhibits, since they are outside the record. LSA-C.C.P. art. 2164; Reed, 36,531 at 5, 839 So.2d at 958; Ray Brandt Nissan, Inc. v. Gurvich, 98-634, p. 3 (La.App. 5 Cir. 1/26/99), 726 So.2d 474, 476.
Because no evidence of the April 21, 2009 judgment or the personal injury proceedings *140 appears in the record, we have no basis upon which to consider the merits of Ms. Brunelle's argument on appeal. Therefore, based on the record before us, we cannot say that the trial court erred in denying the Petition to Nullify Orders and Judgments.
DECREE
For the foregoing reasons, we affirm the July 15, 2009 judgment of the trial court, denying plaintiffs' Petition to Nullify Orders and Judgments.
AFFIRMED.
NOTES
[1] In her Petition to Nullify Orders and Judgments, Ms. Brunelle also sought to annul the letters of tutorship issued in the tutorship proceeding in February 2006. However, at the hearing in this matter on July 15, 2009, counsel for Ms. Brunelle only argued regarding the April 21, 2009 motion & apparently abandoned the claim regarding the February 2006 judgment, stating that it was "fairly a moot issue." Ms. Brunelle also argues solely about the trial court's failure to annul the April 21, 2009 judgment on appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2591382/ | 13 N.Y.2d 1170 (1964)
In the Matter of Onteora Club et al., Appellants,
v.
Board of Assessors of the Town of Hunter, Respondent.
Court of Appeals of the State of New York.
Argued January 7, 1964.
Decided January 23, 1964.
Richard B. Overbagh and N. LeVan Haver for appellants.
Charles E. Nichols for respondent.
Concur: Chief Judge DESMOND and Judges DYE, FULD, VAN VOORHIS, BURKE and SCILEPPI. Taking no part: Judge BERGAN.
Order affirmed, without costs; no opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2807960/ | J-S31006-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYLER DAVID FIX,
Appellant No. 1613 MDA 2014
Appeal from the Judgment of Sentence August 25, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000216-2014
BEFORE: BENDER, P.J.E., ALLEN, J., and WECHT, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 12, 2015
Appellant, Tyler David Fix, appeals from the August 25, 2014
judgment of sentence imposed after he was convicted of persons not to
possess a firearm, 18 Pa.C.S. § 6105(a)(1), and possession of a controlled
substance, 35 P.S. § 780-113(a)(16). Appellant challenges the sufficiency
and weight of the evidence to sustain his firearm conviction, as well as the
discretionary aspects of his sentence. After careful review, we affirm.
Appellant was charged with the above-stated offenses and proceeded
to a non-jury trial on July 31, 2014. The trial court summarized the
evidence presented at Appellant’s trial, as follows:
[T]he record reflects that Chief John Pontician of the
Womelsdorf Borough Police Department proceeded to 20 East
High Street in Womelsdorf, Berks County, Pennsylvania after
being informed by Nancy Ruth, [Appellant’s] Aunt, that
[Appellant] was living at that address. There was an active
J-S31006-15
warrant for [Appellant’s] arrest due to a parole violation.
Moreover, Ms. Ruth did not want [Appellant] living at her
parents’ home because they were elderly and she believed his
presence would have a negative impact on their health.
On the afternoon of November 6, 2013, Chief Pontician
found [Appellant] illegally burning items in a barrel at the
residence. As Chief Pontician was taking [Appellant] into
custody, he noticed a firearm magazine and [a] number of .22
caliber long rifle cartridges at [Appellant’s] feet. Also, Chief
Pontician observed a Mossberg semiautomatic .22 long rifle
nearby.[1] The magazine and ammunition contained in the rifle
were identical to the magazine and ammunition discovered at
[Appellant’s] feet. In addition, Nancy Ruth testified that only her
father and [Appellant] had keys to the garage where the gun
was located and that she had never known her father to keep
firearms in the house.
Trial Court Opinion (TCO), 11/14/14, at 3-4 (citations to the record
omitted).
Based on these facts, the trial court found Appellant guilty of persons
not to possess a firearm. Additionally, at the time of Appellant’s arrest, he
was found to be in possession of the prescription drug Benzodiazepine, for
which he did not have a prescription. N.T. Trial, 7/31/14, at 30-31.
Accordingly, the court also convicted Appellant of possession of a controlled
substance.
____________________________________________
1
Chief Pontician testified that Appellant was standing close to an open door
leading into the garage and, just inside the garage, the chief could “see the
butt of a rifle stock.” N.T. Trial, 7/31/14, at 23-24. Chief Pontician stated
that Appellant was standing approximately 6 to 7 feet from the gun. Id. at
29.
-2-
J-S31006-15
On August 25, 2014, the court sentenced Appellant to an aggregate
term of five to ten years’ incarceration, followed by three years’ probation.
Appellant filed a timely post-sentence motion, which the court denied. He
then filed a timely notice of appeal, as well as a timely Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. Herein, Appellant
raises three issues for our review:
A. Whether the evidence was insufficient to establish the guilty
verdict of Persons Not to Possess, Use, Manufacture, Control,
Sell or Transfer Firearms under 18 Pa.C.S.A. [§] 6105(a)(1)
where the evidence presented at trial was insufficient to
prove beyond a reasonable doubt that Appellant had actual or
constructive possession of a firearm[?]
B. Whether the verdict of guilty for Persons Not to Possess, Use,
Manufacture, Control, Sell or Transfer Firearms under 18
Pa.C.S.A. [§] 6105(a)(1) was contrary to the weight of the
evidence presented, which showed that Appellant’s father was
the sole owner of the rifle[?]
C. Whether the court abused its discretion by sentencing
Appellant to a term of five (5) to ten (10) years[’]
incarceration followed by three (3) years of special probation
where the period of confinement and the consecutive
probation sentence are greater than that which would be
consistent with the sentencing factors including the protection
of the public, the gravity of the offense as it relates to the
impact on the life of the victim and the community, and the
rehabilitative needs of [] Appellant[?]
Appellant’s Brief at 6 (footnote omitted).
Appellant first argues that the evidence was insufficient to sustain his
firearm conviction.
Our standard of review in a sufficiency of the evidence
challenge is to determine if the Commonwealth established
beyond a reasonable doubt each of the elements of the
-3-
J-S31006-15
offense, considering all the evidence admitted at trial, and
drawing all reasonable inferences therefrom in favor of the
Commonwealth as the verdict-winner. The trier of fact
bears the responsibility of assessing the credibility of the
witnesses and weighing the evidence presented. In doing
so, the trier of fact is free to believe all, part, or none of
the evidence.
Commonwealth v. Newton, 994 A.2d 1127, 1131 (Pa. Super.
2010), appeal denied, 608 Pa. 630, 8 A.3d 898 (2010), quoting
Commonwealth v. Pruitt, 597 Pa. 307, 318, 951 A.2d 307,
313 (2008) (citations omitted). The Commonwealth may sustain
its burden by means of wholly circumstantial evidence, and we
must evaluate the entire trial record and consider all evidence
received against the defendant. Commonwealth v. Markman,
591 Pa. 249, 270, 916 A.2d 586, 598 (2007).
Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013).
Here, Appellant maintains that his conviction of persons not to possess
a firearm cannot stand because the Commonwealth failed to prove that he
constructively possessed the gun discovered inside the garage.
Constructive possession is a legal fiction, which is invoked when
actual possession at the time of arrest cannot be shown, but
there is a strong inference of possession from the facts
surrounding the case. Constructive possession has been defined
as “conscious dominion,” which requires two elements: the
power to control the contraband and the intent to exert such
control.
Commonwealth v. Battle, 883 A.2d 641, 644-645 (Pa. Super. 2005).
Appellant acknowledges that his “presence at the home could arguably
establish the first element of constructive possession, [i.e.] that he had the
power to exercise control over the contraband….” Appellant’s Brief at 14.
However, he argues that “the Commonwealth failed to offer evidence that it
was his intention to possess the rifle.” Id.
-4-
J-S31006-15
We disagree. We reiterate that “[t]he Commonwealth may sustain its
burden by means of wholly circumstantial evidence….” Hopkins, 67 A.3d at
820 (citation omitted). In this case, Chief Pontician testified that he
discovered at Appellant’s feet the exact same type of magazine and
ammunition that were found in the firearm. Ms. Ruth testified that only
Appellant and her father (Appellant’s grandfather) had keys to the garage,
and she did not know her father to keep guns at the home. When Chief
Pontician arrived at the scene on November 6, 2013, Appellant was standing
just outside the open door to the garage with the firearm located six to
seven feet away. We conclude that this circumstantial evidence was
sufficient to permit the trial court, as the fact-finder, to conclude that
Appellant had the intent to exert control over the firearm. Accordingly, his
challenge to the sufficiency of the evidence is meritless.
Next, Appellant contends that his conviction of persons not to possess
a firearm was contrary to the weight of the evidence presented at trial.
Our standard of review for a challenge to the weight of the
evidence is well-settled: The finder of fact is the exclusive judge
of the weight of the evidence as the fact finder is free to believe
all, part, or none of the evidence presented and determines the
credibility of the witnesses. As an appellate court, we cannot
substitute our judgment for that of the finder of fact. Therefore,
we will reverse a jury's verdict and grant a new trial only where
the verdict is so contrary to the evidence as to shock one's sense
of justice. Our appellate courts have repeatedly emphasized that
[o]ne of the least assailable reasons for granting or denying a
new trial is the lower court's conviction that the verdict was or
was not against the weight of the evidence.
Furthermore,
-5-
J-S31006-15
where the trial court has ruled on the weight claim below,
an appellate court's role is not to consider the underlying
question of whether the verdict is against the weight of the
evidence. Rather, appellate review is limited to whether
the trial court palpably abused its discretion in ruling on
the weight claim.
Commonwealth v. Rabold, 920 A.2d 857, 860-861 (Pa. Super. 2007)
(internal citations and quotation marks omitted).
Appellant’s challenge to the weight of the evidence hinges primarily on
the trial court’s decision to disbelieve the testimony of his father, Ronald Fix.
Mr. Fix testified that he owned the rifle found in the garage, and claimed
that he had placed it there “because [he did not] want to drive around with
it in his vehicle.” N.T. Trial at 56. Appellant contends that,
the trial court chose to completely discredit the testimony of
Ronald, the owner of the rifle in question, while finding [Ms.]
Ruth’s and the officers’ testimony credible. In denying
Appellant’s Motion for a New Trial, the trial court provided no
reasoning as to why it found [Ms.] Ruth’s and the officers’
testimony entirely credible, while disbelieving the testimony of
the rifle’s owner.
Appellant’s Brief at 16. Appellant also reiterates his argument that the
Commonwealth failed to prove he constructively possessed the firearm.
Initially, Appellant cites no legal authority to support his suggestion
that a trial court is required to state the rationale underlying its credibility
determinations. In any event, the trial court provides the following
explanation in its Pa.R.A.P. 1925(a) opinion:
This court found the testimony of Nancy Ruth and the police
officers to be credible. Furthermore, due to his demeanor, as
-6-
J-S31006-15
well as the circumstantial evidence presented at trial concerning
[Appellant’s] constructive possession of the rifle, we found
Ronald Fix’s testimony that he placed his rifle in the garage at
his parents’ home to be incredible. Given these facts, the
verdict certainly fails to shock one’s sense of justice.
TCO at 5 (emphasis added). Based on the court’s discussion, we ascertain
no abuse of discretion in its decision to deny Appellant’s challenge to the
weight of the evidence. Additionally, Appellant’s claim that the verdict was
contrary to the weight of the evidence because the Commonwealth did not
demonstrate that he constructively possessed the gun is meritless for the
reasons stated supra.
Lastly, Appellant presents a challenge to the discretionary aspects of
his sentence. However, we are constrained to deem this issue waived. The
Pennsylvania Rules of Appellate Procedure explicitly state:
An appellant who challenges the discretionary aspects of a
sentence in a criminal matter shall set forth in his brief a
concise statement of the reasons relied upon for allowance
of appeal with respect to the discretionary aspects of a
sentence. The statement shall immediately precede the
argument on the merits with respect to the discretionary
aspects of sentence.
Pa.R.A.P. 2119(f) (emphasis added). Here, Appellant has not included a
Rule 2119(f) statement in his brief to this Court. “While this does not
automatically waive his claim on appeal, we may not reach the merits of
[the] claims where the Commonwealth has object[ed] to the omission of the
statement.” Commonwealth v. Hudson, 820 A.2d 720, 727 (Pa. Super.
2003) (internal citation and quotation marks omitted). The Commonwealth
-7-
J-S31006-15
has expressly objected to Appellant’s omitted Rule 2119(f) statement in its
brief to this Court. See Commonwealth’s Brief at 12-13. Accordingly, we
are constrained to deem Appellant’s challenge to the discretionary aspects of
his sentence waived. See Commonwealth v. Anderson, 830 A.2d 1013,
1017 (Pa. Super. 2003) (“[I]f the appellant fails to comply with [Rule]
2119(f) and the Commonwealth objects, the issue is waived for purposes of
review.”) (citations omitted).
Nevertheless, even if Appellant had not waived his sentencing
challenge, we would conclude that it is meritless.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Hoch, 936 A.2d 515, 517–18 (Pa. Super. 2007)
(citation omitted).
The trial court explains in its opinion, and the record confirms, that the
court “thoroughly considered the sentencing guidelines, a pre-sentence
investigation report, the facts admitted on the record, and arguments of
counsel and [Appellant] before imposing a sentence within the standard
range of the sentencing guidelines.” TCO at 6-7. In fashioning Appellant’s
sentence, the court took into account Appellant’s “age, his prior record
score, the fact that he had not done well under county supervision, and the
-8-
J-S31006-15
fact that he was on parole at the time he committed the instant offenses….”
Id. at 7. In light of these circumstances, the “court concluded that a
standard range sentence followed by a period of probation was appropriate.”
Id. Based on our review of the record, and the court’s discussion, we would
conclude that Appellant’s sentence was not an abuse of the court’s
discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/2015
-9- | 01-03-2023 | 06-12-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2858002/ | IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
ON MOTION FOR REHEARING
NO. 3-91-467-CV
GUARANTY FEDERAL SAVINGS BANK,
APPELLANT
vs.
DONALD R. DEARING AND WIFE, LULA MAE DEARING,
AND JAMES K. PRESNAL,
APPELLEES
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. 471,245, HONORABLE JOE B. DIBRELL, JUDGE
PER CURIAM
Appellant Guaranty Federal Savings Bank has filed a motion for rehearing asking
this Court to reconsider its opinion and judgment of November 20, 1991, dismissing the appeal
for want of jurisdiction. We previously granted Guaranty Federal leave to file a transcript and
statement of facts in support of its motion. We will overrule the motion for rehearing.
The district court signed a summary judgment in favor appellees Donald and Lula
Mae Dearing and James K. Presnal on June 26, 1991. Guaranty Federal timely filed a motion for
rehearing and new trial on July 25, 1991. Tex. R. Civ. P. Ann. 329b(a) (Supp. 1991).
Nevertheless, Guaranty Federal filed a motion to amend judgment date. See Tex. R. Civ. P. Ann.
306a(4),(5) (Supp. 1991). After a hearing, the trial court determined that
. . . the motion is meritorious and should be granted in part.
IT IS THEREFORE, ORDERED that the date that shall determine the
beginning of the period prescribed by the Texas Rules of Civil Procedure for the
Court's plenary power to act and for other various matters described in Rule
306(a)(1) shall be and the same is hereby ordered to be July 10, 1991.
(Emphasis added). Guaranty Federal then counted the time within which to perfect its appeal
from July 10th and not June 26th, the date of signing of the judgment. Because July 10th was not
more than twenty days from the day judgment was signed, we concluded that Guaranty Federal
should have complied with Tex. R. App. P. Ann. 41(a) (Pamph. 1991) and dismissed the appeal
for want of jurisdiction. See Rule 306a(4),(5); Tex. R. App. P. Ann. 5(b) (Pamph. 1991);
Memorial Hosp. v. Gillis, 741 S.W.2d 364 (Tex. 1987).
After we issued our opinion and judgment, Guaranty Federal filed, in the trial
court, a motion regarding no notice of judgment. Guaranty Federal asked that court to find that:
(1) Guaranty Federal first received notice of judgment on July 10, 1991; (2) the amended
judgment date was based upon counsels' agreement to facilitate a hearing on the motion for
rehearing filed in the trial court; (1) and (3) "the beginning of the period that runs from the signing
of the judgment be July 21, 1991." On December 17, 1991, the trial court issued its order
stating:
For the benefit of the Court of Appeal, . . . the Court conditionally grants that
Guaranty Federal received actual notice of signing of judgment on July 21, 1991.
The Court further finds that Guaranty Federal received notice of judgment on July
9, 1991.
In its motion for rehearing and brief filed in this Court, Guaranty Federal requests
that we reconsider our judgment of dismissal. Guaranty Federal asserts that the record now
before this Court "demonstrates that Guaranty Federal first received either notice or actual
knowledge of the entry of" judgment on July 21, 1991.
We do not address Guaranty Federal's assertion. The trial court initially stated that
the relevant date was July 10, 1991, and did not make a finding that the date was more than
twenty days after the judgment was signed. Only after this Court dismissed its appeal did
Guaranty Federal return to the trial court to obtain the findings necessary pursuant to Rule 306a
and Rule 5. Although neither rule sets a time limit within which to establish the date of notice,
we conclude that, in this case, Guaranty Federal should have perfected its appeal pursuant to Rule
41(a). Sur v. R.W. Otts, Inc., 800 S.W.2d 647 (Tex. App. 1990, writ denied).
The date Guaranty Federal's attorney received notice did not prevent Guaranty
Federal from filing a timely motion for new trial. Furthermore, Guaranty Federal did not obtain
the requisite finding at the time of the first motion and hearing pursuant to Rule 306a.
Accordingly, the motion for rehearing of Guaranty Federal Savings Bank is
overruled.
[Before Chief Justice Carroll, Justices Aboussie and Kidd]
Filed: February 19, 1992
[Do Not Publish]
1. 1 We find no merit to the argument that the parties agreed to the date of July 10, 1991. Texas
R. Civ. P. Ann. 329b (Supp. 1991) does not provide for an extension of time within which to hear
a motion for new trial. Compare Tex. R. Civ. P. Ann. 329b(4) (1961, amended 1981) (motions
for new trial must be determined within forty-five days after filing unless decision postponed by
written agreement of parties). Rule 306a allows for time limits to run other than from the date
of judgment only if a party did not receive notice within twenty days of the signing of judgment.
See Tex. R. Civ. P. Ann. 5 (Supp. 1991); Cent. St. Dep. of Crim. Rec. v. M M M , 665 S.W.2d
562, 564 (Tex. App. 1984, writ ref'd n.r.e.). Parties cannot confer appellate jurisdiction on a
court by consent. Hogan v. G.,C.&S.F. Railway Company, 411 S.W.2d 815, 816 (Tex. Civ.
App. 1966, writ ref'd); Welder v. Fritz, 750 S.W.2d 930, 932 (Tex. App. 1988, orig.
proceeding). | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2406890/ | 385 S.W.2d 899 (1965)
TEXAS OYSTER GROWERS ASSOCIATION et al., Appellants,
v.
Will E. ODOM et al., Appellees.
No. 11254.
Court of Civil Appeals of Texas, Austin.
January 6, 1965.
Rehearing Denied January 27, 1965.
Ryan & Eckhardt, Houston, for appellants.
Waggoner Carr, Atty. Gen., J. Arthur Sandlin, Howard Fender, Jim Briscoe, Wayne R. Rodgers, Asst. Attys. Gen., Black & Stayton, Austin, Dyche, Wheat, Thornton & Wright, Hamblen & Hamblen, Bracewell, Reynolds & Patterson, Baker, Botts, Shepherd & Coates, Hugh M. Patterson, Liddell, Austin, Dawson & Sapp, Houston, Keith, Mehaffy & Weber, Beaumont, Vinson, Elkins, Weems & Searls, *900 Raymond J. Fields, Dave McNeill, Jr., Houston, for appellees.
ARCHER, Chief Justice.
Appellants filed this suit to contest the validity of an order of a State Commission, appellees herein, granting dredging permits, and contended that dredging pursuant to such permits injured and destroyed shell reefs from which appellants harvest oysters for sale, and sought a declaratory judgment finding the order to be of no effect, and for injunction.
The Court dismissed the action upon a plea to the jurisdiction.
The appeal is founded on one point and is: That the trial court erred in sustaining the plea to the jurisdiction asserted by Commissioner Defendants and in dismissing the cause as to all parties upon the basis of the Court's opinion "that it is without jurisdiction to hear said cause."
Appellants asserted that they had a right to proper process in accordance with statutory standards and conducted in such a way as to afford them due process of law in a State agency's proceedings which directly affected their business.
Further allegations were that, under the order, dregers operated in such way as to deposit heavy layers of silt, resulting in great injury to the oyster beds affected.
Appellants concede that the State may either grant or refuse the privilege of exploitation of the resources of its bays, but that a permit once granted, one may lawfully build a business and may insist upon procedural due process where such business is adversely affected by administrative action and can resort to the Courts for relief. The Legislature has declared that all natural oyster beds and oyster reefs are public. Acts 1919, 36th Leg., 2d Called Sess., Chap. 73, Sec. 8, Vernon's Ann.Civ. St., Supp.1922, art. 3981, now Article 4027, Vernon's Ann.Civ.St. and Article 4053 as amended in 1963.
Appellants take the position that the Commissioners' action is not within the rule of immunity of the State from suit, and cite Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 172 A.L.R. 837.
Appellees say that the action of the Commission in selling the shell dredged more than 300 feet from live oyster beds or reefs is not subject to judicial review; that since the statute does not provide for a hearing before the Commission that appellants were not deprived of procedural due process; in any event due process was afforded appellants by a hearing held by the Commission at which hearing the appellants had the opportunity to have written questions propounded to adverse witnesses; that appellants do not have such vested property right as to give them any litigable interest in the present controversy; and finally that appellants' suit is one against the State and the State has not waived its sovereign immunity. The Court correctly dismissed the action. Scott v. Graham, 156 Tex. 97, 292 S.W.2d 324, Haden Co. v. Dodgen, 158 Tex. 74, 308 S.W.2d 838.
The plaintiffs seek to cancel contracts made by the Commission with the dredgers for the benefit of the State and is a suit against the State.
The Statute herein involved does not provide for a statutory appeal and the Court has no jurisdiction. City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788.
The plaintiffs are three unincorporated associations of commercial oystermen and fishermen, four clubs of fishermen for sport, one seafood buyer, four fish camp operators and a corporation "established for the purpose * * * of bringing this suit." (Plaintiffs' Original Petition in Cause No. 135, 160 in the 126th District Court of Travis County.)
The order complained of by appellants was heard by the Commission on September 30, 1963, on the application of W. D. Haden Company and three other companies for a permit to purchase and carry away shell in *901 the territory designated as Galveston and Trinity Bays and states that substantial evidence, oral and written, was received by the Commission, and that the Commission had obtained pertinent information and data from other sources. The order also states that notice was given and that the Commission found that the taking of shell or mud shell in the designated territory will not damage or injuriously affect any live oysters, oyster beds or fish, and limited such performances nearer than 300 feet of such beds, etc.
The Commission reserved the right to rescind or modify the order at any time.
We believe that the trial court was justified in dismissing the suit.
The appellants have no vested property right in the permits they have to produce the oysters and therefore, do not have a litigable interest in the controversy.
The power to sell shell and mud shell found in the public waters of the State has been conferred upon the Commission and the appellants cannot override the discretion exercised by the Commission in the sale of the shell and mud shell, and it is a suit against the State. W. D. Haden Co. v. Dodgen, supra; Texas Highway Commission v. West Texas Drilling of Hereford, Inc., Tex.Civ.App., 366 S.W.2d 242, er. ref., n. r. e.; Richardson v. Alsup, Tex.Civ.App., 380 S.W.2d 923, er. ref.
The order complained of is not appealable. Moody v. Texas Water Commission, Tex.Civ.App., 373 S.W.2d 793, er. ref., n. r. e.
Hearings for a State Commission are informal.
From an examination of the record, it is apparent that everyone who desired to speak was accorded such privilege. Texas Highway Commission v. Texas Association of Steel Importers, 372 S.W.2d 525 (Tex., Supreme Court).
Since the judgment of dismissal in this case plaintiffs have filed another suit in Cause No. 136,294 in the 53rd Judicial District Court of Travis County with the same defendants as are in the cause before this Court now.
The judgment of the trial court is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3343002/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION
This application for Temporary Injunction came before the court on March 1, 1993. All parties agreed that instead of their presenting evidence the court would view the premises to determine if the "speed bump" in question interferes and impedes the plaintiffs in their use of an easement and is likely to case harm to their vehicles and those of their invitees. The court viewed the premises in the presence of counsel for all parties on March 1, 1993.
The court concludes that the "speed bump" constitutes an inconvenience to those using the easement. However, this inconvenience must be weighed against defendants' need to slow traffic on a narrow unpaved roadway in a relatively congested area. The "bump" is not of a size which is likely to damage vehicles which are operated at a reasonable speed in light of all prevailing circumstances. Therefore, plaintiffs have failed to prove that they will be irreparably harmed unless this obstruction is removed.
However, it is clear that any alteration to the area which enhances the height, width or changes the material composition of the "speed bump" is likely to be a hazard to lawful traffic especially because of the difficulty in seeing the obstruction upon approach. Therefore, the defendants are temporarily enjoined from increasing the width, height or material composition of the speed bump in question or otherwise CT Page 2709 making it more intrusive.
So ordered.
JOHN J. LANGENBACH JUDGE, SUPERIOR COURT | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1557570/ | 673 F. Supp. 167 (1987)
Seaborn R. WICKER, et al.
v.
FIRST FINANCIAL OF LOUISIANA SAVINGS AND LOAN ASSOCIATION, et al.
Civ. A. No. 86-889-B.
United States District Court, M.D. Louisiana.
November 3, 1987.
*168 John Dale Powers, David L. Guerry and Patrick J. Cooper, Powers & Vaughn, Baton Rouge, La., for plaintiffs.
Steven W. Copley, New Orleans, La., for First Financial of Louisiana Sav. and Loan Ass'n.
J. Glenn Dupree, Adoock & Dupree, Baton Rouge, La., and David LeClere, Perrault, Uter & LeClere, Baton Rouge, La., for River City Federal Sav. Bank.
ON MOTION FOR FINAL JUDGMENT
POLOZOLA, District Judge.
This matter is before the court on the motion of defendant River City Federal Savings Bank (River City) for entry of a final judgment pursuant to F.R.C.P. 54(b), and upon the motion of plaintiffs Seaborn Wicker, et al.[1] to reconsider, alter, modify, and/or vacate this court's order of June 24, 1987 dismissing River City from this action.
This suit arises out of transactions surrounding the purchase of four tracts of land in Florida. Plaintiffs contend that the defendant First Financial of Louisiana Savings and Loan Association (First Financial) has violated 12 U.S.C. 1464(q) et seq. Plaintiffs also have filed a state law claim against River City for breach of certain loan commitments on which plaintiffs have allegedly relied to their detriment. This court declined to exercise pendent party jurisdiction over River City for reasons set forth in its minute entry dated June 24, 1987. It is this judgment that River City wishes to make final and Seaborn Wicker desires to be vacated.
The court will first address the plaintiffs' motion to reconsider. As stated in the court's earlier opinion, Aldinger v. Howard, 427 U.S. 1, 96 S. Ct. 2413, 49 L. Ed. 2d 276 (1976) requires that a two prong test be satisfied in order for the court to have pendent party jurisdiction. The jurisdiction must meet the Constitutional requirements of Article III, and it must be demonstrated that Congress has not expressly or impliedly negated the existence of jurisdiction by statute. The court found that both prongs were met.
Even when the two-part test is satisfied, however, the exercise of pendent jurisdiction is still a matter left to the discretion of the district court. Plaintiff has no right to demand the court to exercise pendent jurisdiction in a case. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139, 16 L. Ed. 2d 218 (1966), Zabkowicz v. West Bend Co., *169 789 F.2d 540, 546 (7th Cir.1986). After again carefully reviewing the record, and with full recognition that pendent party jurisdiction has been approved by the Fifth Circuit in Feigler v. TIDEX, 826 F.2d 1435 (5th Cir.1987), this court reaffirms its earlier decision to decline exercising pendent party jurisdiction over River City in this case.
Every circuit which has considered the matter of pendent party jurisdiction, except the Ninth Circuit, has recognized the discretion afforded to the trial court as to whether the court should accept pendent jurisdiction in a case.[2] In Feigler v. TIDEX, 826 F.2d 1435 (5th Cir.1987), the Fifth Circuit adopted an "abuse of discretion" standard for reviewing these decisions and cited Zabkowicz v. West Bend Co., 789 F.2d 540 (7th Cir.1986). In Zabkowicz, the Seventh Circuit reiterated that according to Gibbs, the rationale underlying the existence of pendent jurisdiction is convenience, judicial economy and fairness to the litigants.[3]
In Feigler, the Fifth Circuit recognized that it had in the past upheld pendent party jurisdiction where "(t)he facts presented ... (did) not pose the strongest possible case for jurisdiction." Boudreaux v. Puckett, 611 F.2d 1028 (5th Cir.1980), Smith v. Nat'l Flood Ins. Program, 796 F.2d 90 (5th Cir.1986), Arango v. Guzmn Travel Advisors Corp., 621 F.2d 1371 (5th Cir.1980). The Feigler court affirmed the trial court's finding of pendent party jurisdiction. The court reasoned that because the extent of damage caused to the plaintiff's back due to a Jones Act claim could not be determined without a concomitant decision about the extent of the injury caused by a subsequent automobile accident, a sufficient common nucleus of operative fact existed in order to affirm the jurisdiction. In the case at bar, the nexus of the transactions is conceded by the court and is not at issue. However, there are other factors which contributed to the court's decision to decline pendent jurisdiction which were noted in the court's opinion.
The court, in addition to the reasons set forth in its June 24 order, again emphasizes that comity between the federal and state systems mitigates any consideration of judicial economy and convenience urged by keeping River City in federal court. The federal court should not be made into courts of general jurisdiction by the application of the doctrine of pendent party jurisdiction. Aldinger, supra, 427 U.S. 15, 96 S.Ct. at 2420.
The court finds that the positive effect on convenience and judicial economy is minimal if this court exercises jurisdiction. Fairness to the defendant and respect for a Louisiana court's interpretation of its newly codified state law on detrimental reliance are also serious factors the court has considered in reaching its decision to decline jurisdiction over the claim asserted against River City. These factors strongly dictate that this court should not exercise jurisdiction over the state law claim asserted against River City in this case.
Having declined to alter this court's order of June 24, 1987 and receiving no specific objections to the granting of River City's Rule 54(b) request, this court will grant defendant's motion for entry of final judgment.
A dismissal of a claim for lack of subject matter jurisdiction may dispose of a claim completely and thus bring it within the scope of the rule. 10 Wright and Miller, Federal Practice and Procedure, section *170 2656 at p. 51. Having dismissed River City as a defendant from this action and finding no just reason to delay the appeal of this judgment dismissing River City, the motion of River City for entry of final judgment is granted.
Therefore:
IT IS ORDERED that the motion of the plaintiffs, Seaborn Wicker, William John Dawson, LDW Partnership, Emerald Coast Inlet Developers and RMN Developers, Inc., to reconsider, alter, modify and/or vacate the order of June 24, 1987 is DENIED.
IT IS FURTHER ORDERED that the motion of defendant River City Federal Savings Bank for final entry of judgment is GRANTED.
Within fifteen days, River City Federal Savings Bank shall submit a final judgment which shall be approved as to form by the plaintiffs.
NOTES
[1] Other plaintiffs are William John Dawson, LDW Partnership, Emerald Coast Inlet Developers and RMN Developers.
[2] Federal Deposit Insurance Corp. v. Otero, 598 F.2d 627 (1st Cir.1979); Weinberger v. Kendrick, 698 F.2d 61 (2d Cir.1982); Bernstein v. Lind-Walcock & Co., 738 F.2d 179 (7th Cir.1984); State of North Dakota v. Merchants National Bank and Trust Co., 634 F.2d 368 (8th Cir.1980) (en banc); Stewart v. United States, 716 F.2d 755 (10th Cir.1982); First Alabama Bank v. Parsons Steel, Inc., 747 F.2d 1367 (11th Cir.1984); Lykins v. Pointer, Inc., 725 F.2d 645 (11th Cir. 1984). But see Carpenters Southern California Admin. Co-op. v. D & L Camp Const. Co., 738 F.2d 999 (9th Cir.1984).
[3] The court in Zabkowicz v. West Bend Co., 789 F.2d 540 (7th Cir.1986) noted that the court in Aldinger v. Howard, 427 U.S. 1, 96 S. Ct. 2413, 49 L. Ed. 2d 276 (1976) had cautioned that "in instances of exclusive federal jurisdiction, the exercise of pendent party jurisdiction may be warranted since `only in a federal court may all of the claims be tried together.'" 427 U.S. at 18, 96 S.Ct. at 2422 (emphasis in original). Zabkowicz, supra at 548. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2584019/ | 31 Kan.App. 2d 1040 (2003)
77 P.3d 502
STATE OF KANSAS, Appellee,
v.
BRYAN RHODES, Appellant.
No. 89,409
Court of Appeals of Kansas
Opinion filed October 3, 2003.
Matthew J. Edge, assistant appellate defender, for the appellant.
James L. Spies, assistant district attorney, Nick A. Tomasic, district attorney, and Phill Kline, attorney general, for the appellant.
Before MALONE, P.J., PIERRON and GREEN, JJ.
PIERRON, J.:
Bryan Rhodes appeals the restitution order entered following his conviction for nonresidential burglary and attempted theft.
Rhodes and his brother were caught red-handed removing a couch from an unoccupied house. They dropped the couch and ran. Melinda Gontarek was the owner of the property in the unoccupied house. Her father owned the house, and her grandmother lived next door and was the person who caught Rhodes.
Rhodes plead guilty to nonresidential burglary and attempted theft. The court ordered Rhodes to pay restitution in the amount of $6,145. Rhodes objected to the amount of restitution and requested a hearing. Gontarek testified that she inventoried the personal property after the burglary and itemized all the missing property. Gontarek could not produce receipts or written estimates for all the property, but she testified she recalled the specific amounts she paid for the stolen items or she took steps to determine the property's value. The trial court affirmed its previous restitution order of $6,145.
*1041 Rhodes argues the trial court abused its discretion by ordering restitution in excess of fair market value and that the amount of restitution was not based on reliable evidence. We agree.
The sentencing court has substantial discretion when ordering the amount of restitution. State v. Hinckley, 13 Kan. App. 2d 417, 418, 777 P.2d 857 (1989). The method of determining the amount of any required restitution is a matter within the discretion of the trial court. State v. Wells, 18 Kan. App. 2d 735, 737, 861 P.2d 828 (1993). "Although the rigidness and proof of value that lies in a civil damage suit does not apply in a criminal case, the court's determination of restitution must be based on reliable evidence which yields a defensible restitution figure." State v. Casto, 22 Kan. App. 2d 152, 154, 912 P.2d 772 (1996).
K.S.A. 2002 Supp. 21-4610(d)(1) says the trial court shall order a defendant to make restitution to the aggrieved party for the damage or loss caused by the crime, in a manner and amount determined by the court.
In Hinckley, the defendant pled nolo contendere to two counts each of burglary and felony theft but later appealed the amount of restitution. The State offered evidence of the replacement value of the stolen property rather than the actual value of the property at the time it was stolen. We reversed the sentencing court's restitution order because the "sum ordered clearly requires the defendant to pay a sum of money in excess of the amount of damage his criminal conduct caused the victim." 13 Kan. App. 2d at 419.
In State v. Applegate, 266 Kan. 1072, 976 P.2d 936 (1999), the State appealed the district court's finding that a settlement in a civil suit fulfilled the defendant's criminal restitution obligation. The court concluded that the district judge had not abused his discretion in finding that the civil settlement satisfied defendant's restitution requirement. 266 Kan. at 1080.
In Applegate, this court reviewed the Arizona case of State v. Iniguez, 169 Ariz. 533, 821 P.2d 194 (1991). In Iniguez, the Arizona Supreme Court upheld the trial court's determination that the Arizona restitution statutes should fully compensate the victim for economic loss but should not bestow a windfall on the victim. "`Because a primary purpose of restitution is to make the victim *1042 whole, and the other aim of restitution is rehabilitative rather than punitive, payment beyond that necessary to compensate does not serve the Legislature's purposes.' 169 Ariz. at 537." 266 Kan. at 1076-77. "The measure of reparation or restitution to be ordered, pursuant to K.S.A. 21-4610(d)(1), is the amount that reimburses the victim for the actual loss suffered." 266 Kan. at 1079.
Here, Gontarek testified that following the burglary, she inventoried all the property in the unoccupied house and produced a list of all the missing items. As to the value of the property, Gontarek's testimony was strictly to replacement value and not market value. For example, she used the price of the bread machine her father paid a year earlier; she used the price of a new television at the store to replace the 5- to 10-year-old color television; she used the cost of replacing the entertainment shelves; and she used the cost of replacing the Halloween figures she bought 2 months earlier. The George Foreman Grill was new and not removed from the box. There was no evidence how she valued the Magic Chef microwave, Magnovox VCR, 2-month-old personal computer system, figurines, TV cart, four-drawer dresser, pantry cabinet, computer desk, and picture frames. If any testimony was given on these items, it was a description of the item and how much she paid for it or the cost of replacing it.
Gontarek's testimony purported to be based on the fair market value of the stolen items. However, the evidence clearly showed that this value was based on the replacement cost of the items. Under Kansas law, Gontarek is permitted to express her opinion as to the fair market value of the items. See Hinckley, 13 Kan. App. 2d at 418. However, Gontarek often used replacement cost or the original purchase price of an item to determine its value. From the evidence presented, it may be that the restitution order is appropriate. However, the district court had no basis to determine the fair market value of many of the goods upon which the restitution order was based. Therefore, even though Gontarek did properly testify as to the fair market value of some of the items, the district court abused its discretion in ordering restitution in the amount of $6,145 because a portion of that amount was calculated in reliance upon replacement cost rather than fair market value.
*1043 We reverse and remand for redetermination of the restitution order to be based solely upon fair market value.
Reversed and remanded with directions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1554232/ | 26 So.3d 1103 (2009)
A.T.K., Appellant
v.
R.M.K.W., Appellee.
No. 2008-CA-01419-COA.
Court of Appeals of Mississippi.
November 24, 2009.
William B. Jacob, Meridian, Attorney for appellant.
Thomas Goodwin Bittick, Attorney for appellee.
Before LEE, P.J., CARLTON and MAXWELL, JJ.
CARLTON, J., for the Court.
¶ 1. Mike[1] appeals the judgment of the Clarke County Chancery Court, which dismissed his action to modify the child custody arrangement between Mike and his ex-wife, Diana. We find that the chancellor failed to consider the totality of the circumstances in determining whether a material change in circumstances existed, which posed a danger to Mike and Diana's minor child. Therefore, we reverse and remand this case for a new trial with directions for the chancellor to reconsider the issue of modification of child custody.
*1104 FACTS
¶ 2. Diana and Mike divorced in April 2005. Diana received primary physical custody of the couple's daughter, Claire, who was born in 2002. Soon after the divorce, Diana married Billy, an offshore oil driller. In January 2005, Billy was arrested on two counts of sexual offenses involving a minor. After marrying Diana in August 2005, Billy was indicted on two counts of statutory rape in February 2006. Billy then pled guilty to one count of statutory rape in September 2006, and he was sentenced to five years in prison, with four years and nine months of his sentence suspended. Diana testified that she was aware before she married him that Billy had been arrested and charged with statutory rape. Diana spoke on Billy's behalf at his sentencing, placing fault upon the minor for the offense.
¶ 3. Meanwhile, after Billy's arrest, Mike learned from the statutory rape victim's mother that Diana and Billy were living together. According to the guardian ad litem's report, Mike stated that he learned at some point before their marriage that Billy and Diana were living together, but Mike testified at trial that Diana never told him that she was planning to marry Billy. As noted, Billy was arrested in January 2005 and later indicted in February 2006; thus, Diana married him while the charges set forth in the indictment were pending. Mike filed a motion for modification of child custody in January 2006, stating that he feared for the safety of his daughter because of her exposure to Billy. A trial was held on April 9, 2007, where the chancellor determined that a guardian ad litem should be appointed to represent Claire's interest. At the conclusion of the trial, the court ordered a temporary joint physical custody arrangement, stipulating that Claire was to live with Mike during the two weeks that Billy was home from his offshore job, and with Diana for the two weeks that Billy was offshore working. The court continued the trial to allow a full investigation by the guardian ad litem.
¶ 4. The guardian ad litem interviewed Mike, Diana, Billy, and Diana's mother, as well as Mike's current wife, Diana's mother, and other family members and friends. On June 7, 2007, the guardian ad litem filed her first report with the court, concluding that Claire's best interest would not be served by remaining in the custody of Diana while she was married to a registered sex offender convicted of a sexual offense against a minor. The report noted that Diana chose to marry Billy without thinking about Claire, and she put her marriage to Billy before her child's best interest. On February 10, 2008, the guardian ad litem filed her final report, which reiterated that custody should be changed from Diana to Mike.
¶ 5. At a trial held on February 12 and 13, 2008, and on April 16, 2008, Diana testified that she had filed for a divorce from Billy, based on the ground of irreconcilable differences. Diana also testified that during an interview with the guardian ad litem, the guardian ad litem told her that if she and Billy were no longer married, the guardian ad litem would change her recommendation that custody should be changed from Diana to Mike. However, Diana testified that the divorce was never finalized. The chancellor found that the presence of a sex offender in the child's home constituted a material change in circumstances adverse to Claire. The chancellor continued the trial, leaving the case open for the sole purpose of receiving evidence of Diana's marital status.
¶ 6. On June 4, 2008, the court held the second part of the hearing. Diana provided evidence that her divorce from Billy *1105 was finalized on May 22, 2008. Upon this finding, the chancellor held that:
[the] circumstances relied upon by the court for its finding of adverse effect, specifically Diana's poor judgment and misleading statements, placing Claire in an unsafe situation, subjecting Claire (sic) to rejection in the community, depriving Claire (sic) of an involved step-father, and providing Claire with a poor example all have presumptively been alleviated and eliminated by the divorce.
The chancellor dismissed Mike's motion for modification of child custody, finding that without Billy's presence in the home, the material change in circumstances adverse to the child's best interest, no longer existed. However, the chancellor determined that since Diana had previously cohabited with Billy despite the pending divorce, Claire's best interest would be served by entering an injunction to prevent the child from being unsupervised in the presence of a convicted sex offender. The court entered an opinion and judgment to that effect on the same day. Under the decree as written, nothing prohibits Billy and Diana from cohabiting or continuing their relationship in Claire's presence as long as done under Diana's supervision.
¶ 7. On appeal, Mike argues that the chancellor erred in (1) failing to properly safeguard a female minor child from a sexual predator by failing to modify custody, (2) failing to conduct an Albright[2] analysis after a finding of material change in circumstances adverse to the minor child, and (3) failing to properly consider a mandatory guardian ad litem's reports and recommendation.
DISCUSSION
¶ 8. This Court has a limited scope of review on challenges to a chancellor's decision to deny a request for modification of custody. Creel v. Cornacchione, 831 So.2d 1179, 1183 (¶ 14) (Miss.Ct.App.2002). "We can reverse only when a chancellor's decision is either manifestly wrong or clearly erroneous, or when the chancellor has applied an erroneous legal standard." Id.
¶ 9. Mike argues that the chancellor committed manifest error by failing to properly safeguard Claire, a female minor child, from a sexual predator when the chancellor failed to modify custody. In child custody cases, the paramount concern is the best interest of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). In order for a chancellor to modify a child custody decree, the noncustodial parent must prove the following: "(1) that a material change of circumstances has occurred in the custodial home since the most recent custody decree, (2) that the change adversely affects the child, and (3) that modification is in the best interest of the child." Powell v. Powell, 976 So.2d 358, 361 (¶ 11) (Miss.Ct.App.2008) (citing Giannaris v. Giannaris, 960 So.2d 462, 467-68 (¶ 10) (Miss.2007)). If the chancellor finds that there has been a material change in circumstances, the court must then apply the Albright factors to determine which parent should have primary custody. Pearson v. Pearson, 11 So.3d 178, 183 (¶ 14) (Miss.Ct.App.2009).
¶ 10. In such matters concerning the protection of a child from danger, the judgment of the parentand parenting skillsare extremely important. Albright, 437 So.2d at 1005. This court has stated that "[w]hile numerous factors may go into the initial consideration of a custody award, see, e.g., [Albright], only parental behavior that poses a clear danger to the *1106 child's mental or emotional health can justify a custody change." Lambert v. Lambert, 872 So.2d 679, 684 (¶ 22) (Miss.Ct.App.2003) (quoting Morrow v. Morrow, 591 So.2d 829, 833 (Miss.1991)). In Riley v. Doerner, 677 So.2d 740, 744 (Miss.1996), the Mississippi Supreme Court similarly held that "when the environment provided by the custodial parent is found to be adverse to the child's best interest, and... the non-custodial parent ... is able to provide an environment more suitable than that of the custodial parent, the chancellor may modify custody accordingly." The court further noted that:
where a child [is] living in a custodial environment clearly adverse to the child's best interest, somehow appears to remain unscarred by his or her surroundings, the chancellor is not precluded from removing the child for placement in a healthier environment. Evidence that the home of the custodial parent is the site of dangerous and illegal behavior ... may be sufficient to justify a modification of custody, even without a specific finding that such environment has adversely affected the child's welfare. A child's resilience and ability to cope with difficult circumstances should not serve to shackle the child to an unhealthy home, especially when a healthier one beckons.
Id.
¶ 11. When considering whether a material change in circumstances has occurred, the court must examine the totality of the circumstances. See In re E.C.P., 918 So.2d 809, 823 (¶ 58) (Miss.Ct.App.2005). A reflection of the factual history in the present case shows that, first, the chancellor, upon learning that Diana was in a relationship with a convicted sex offender, appointed a guardian ad litem to represent Claire's interests. The chancellor then continued the trial to allow the guardian ad litem to conduct an investigation and report her findings to the court. During this time, the chancellor ordered a temporary change in custody, granting joint physical custody to both parties.
¶ 12. When the trial resumed, the chancellor found that Diana's marriage to Billy constituted a material change in circumstances. The chancellor cited his concern regarding Claire's exposure to a convicted sex offender and Claire's mother's poor judgment with respect to ensuring Claire's safety and well-being. The chancellor concluded, based on the report of the guardian ad litem, that Claire's best interest was not served by remaining in her mother's custody while Diana was married to a convicted sex offender. During the trial, however, Diana testified that she had filed for a divorce from Billy in July 2007, ten months prior to the hearing, but the divorce was never finalized. Upon learning that Diana had filed for divorce, the chancellor continued the hearing for the purposes of reviewing Diana's marital status before adjudicating the case.
¶ 13. The record reveals that when Diana discovered that her marriage to the sex offender was resulting in a recommendation of a change in custody from the guardian ad litem, Diana obtained an irreconcilable differences divorce. In addition, Diana and Billy both testified that they did not want to get a divorce, but they proceeded with dissolving the marriage solely so Diana would not lose custody of Claire. The record reflects that Claire was adopted by Mike and Diana because Diana was not able to have children, and that she would be devastated by a loss of custody. However, such emotional claims notwithstanding, evidence showed that Diana continued her relationship with Billy even throughout the divorce proceedingsa private investigator retained by Mike documented that the two spent the night together *1107 on numerous occasions after their initial divorce filing. Further inspection of the guardian ad litem's report also reflected the stigma that was affecting Claire socially due to the presence of a convicted sex offender in the home.
¶ 14. When the final trial was conducted in June 2008, Diana provided evidence to the court that she had obtained a final decree of divorce from Billy on May 22, 2008. Due to the existence of the divorce decree, the chancellor presumed that Billy was no longer in the home, and he held that no material adverse change had occurred. However, we find that such a conclusion and presumption are not supported by the facts in the record. Nothing in the irreconcilable differences divorce decree prevented Diana and Billy from continuing their relationship or even cohabiting, as evidenced by the private investigator's videotape. Nevertheless, the chancellor held that neither the parties nor the guardian ad litem provided evidence that the divorce decree was void.
¶ 15. Although the divorce decree itself may be perfectly valid and binding, thereby dissolving the marital status, a divorce decree and the lack of marital status do not prevent the parties from continuing their relationship, emotionally or physically, or from cohabiting without marital status. Moreover, evidence reported to the guardian ad litem reflects that the divorce decree was obtained only for the subterfuge purposes of appeasing the court so that Diana could retain custody of Claire, and that Diana was continuing her relationship with Billy throughout the separation period. Due to their lack of veracity to the court, there should be no logical assumption or presumption that Diana and Billy's lack of marital status would be an impediment to their cohabiting. The fact that Diana and Billy have not been entirely truthful to the court or guardian ad litem especially concerns us because their deceit pertains to the safety of the young child.
¶ 16. Regardless of whether Diana remarries Billy or not, or whether they merely cohabitate without benefit of marital status, we find that the chancellor should evaluate: (1) whether a material change adversely affecting Claire has occurred by her exposure to a sex offender in her mother's home, and (2) whether any continuing threat of danger or exposure to danger exists. The record is replete with evidence that both Diana and Billy will be untruthful to cover their true actions if it serves their own purposes.[3] If Diana has indeed continued the relationship, posing a potential threat to Claire, the chancellor should evaluate what steps Diana has taken, if any, to protect Claire. Evidence that a child is exposed to dangerous situations may justify modifications without a finding that the child has suffered any negative effects. Riley, 677 So.2d at 744. Therefore, we reverse the chancellor's judgment and remand this case for the chancellor to determine whether a material change in circumstances adverse to Claire has occurred, and if so, to conduct an Albright analysis.
¶ 17. THE JUDGMENT OF THE CLARKE COUNTY CHANCERY COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS *1108 APPEAL ARE ASSESSED TO THE APPELLEE.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR.
NOTES
[1] We use aliases as necessary to protect the minor child's identity.
[2] Albright v. Albright, 437 So.2d 1003 (Miss.1983).
[3] Billy's criminal report from his statutory rape conviction shows that he was untruthful to the minor and her parents as to his true activities and relationship with the young girl. Billy utilized his close relationship and friendship with the minor's parents and family, thereby gaining exposure to the minor and secretly seizing such opportunity to his sexual advantage. He also misrepresented the events to the police during his initial interrogation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1554233/ | 26 So.3d 652 (2010)
KEYSTONE PEER REVIEW ORGANIZATION, INC., Appellant,
v.
STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
No. 1D09-4350.
District Court of Appeal of Florida, First District.
January 25, 2010.
J. Stephen Menton and John M. Lockwood of Rutledge, Ecenia & Purnell, P.A., Tallahassee, for Appellant.
Tracy Lee Cooper, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, for Appellee.
WEBSTER, J.
Keystone Peer Review Organization, Inc., seeks review of a final order entered *653 by the Secretary of the Agency for Health Care Administration (AHCA) dismissing Keystone's formal written protest and petition for an administrative hearing pursuant to a motion to dismiss filed by AHCA staff. The sole basis articulated in the order for dismissal was that, "[b]ecause [AHCA] was not required to engage in competitive bidding, it was not bound to follow competitive bidding procedures and [Keystone] does not have standing to protest [AHCA's] decision to enter into a contract with [Louisiana Health Care Review]." We conclude that the record on appeal does not contain competent substantial evidence to support the determination that "[AHCA] was not required to engage in competitive bidding." Accordingly, we reverse, and remand with directions that AHCA refer Keystone's petition to the Division of Administrative Hearings for a formal hearing, pursuant to section 120.57, Florida Statutes (2009).
On January 8, 2009, AHCA issued a "Request for Information" inviting vendors potentially interested in contracting with AHCA to provide "prior authorization of inpatient medical and home health services for Medicaid in the state of Florida" to submit information. The Request for Information stated that the information submitted would be used to identify interested vendors, but would "not result in the award of a contract." The estimated annual funding for the proposed contract was between $11,000,000 and $12,500,000. Keystone and Louisiana Health Care Review were among the nine responding vendors. A "Decision Memorandum" released on June 3, 2009, recommended that AHCA award the contract to Louisiana Health Care and, on June 9, 2009, AHCA posted an "Advertisement" on its web site reflecting its decision to enter into a contract with Louisiana Health Care.
On June 19, 2009, Keystone filed with AHCA its protest and petition challenging the award and requesting an administrative hearing pursuant to section 120.57(1) and (3)(b), Florida Statutes (2008), claiming that the contract was subject to the competitive procurement requirements of chapter 287, Florida Statutes, and that the procurement process used did not comply with those requirements. AHCA's legal department responded with a motion to dismiss contending that the contract was exempt from the competitive procurement requirements of chapter 287 pursuant to section 287.057(5)(f)6, Florida Statutes, and that, therefore, Keystone lacked standing to protest the process used to award the contract, citing University of South Florida College of Nursing v. State Department of Health, 812 So.2d 572 (Fla. 2d DCA 2002). On August 17, 2009, AHCA's Secretary entered a final order dismissing the protest and petition, stating that, "[b]ecause [AHCA] was not required to engage in competitive bidding, it was not bound to follow competitive bidding procedures and [Keystone] does not have standing to protest [AHCA's] decision to enter into a contract with [Louisiana Health Care Review]." Keystone now appeals, arguing, among other things, that we should reverse because a factual dispute exists as to whether the contract is exempt from the competitive bidding process by virtue of section 287.057(5)(f)6, Florida Statutes (2008), and the record contains no competent substantial evidence demonstrating that the contract is exempt pursuant to that provision. We agree.
Section 287.057(5)(f)6 exempts from the competitive bidding process set out in other parts of that section "[h]ealth services involving examination, diagnosis, treatment, prevention, medical consultation, or administration." In the only reported decision addressing the issue, the Second District Court of Appeal has held that, if a *654 contract is exempt from the competitive bidding process by virtue of section 287.057(5)(f)6, a party that unsuccessfully attempted to secure the contract is not entitled to a formal administrative hearing, even if the contracting agency "elects to employ a competitive mechanism for sorting out its choices." Univ. of S. Fla. Coll. of Nursing v. State Dep't of Health, 812 So.2d 572, 574 (Fla. 2d DCA 2002).
AHCA argues that the contract in question "fall[s] squarely within the . . . exemption, because [it] involve[s] both health consultation and health services administration." It invites us to reach that conclusion after reviewing the Request for Information and a plethora of federal and state statutes, rules and documents. We decline AHCA's invitation to engage in appellate fact-finding. See Siegel v. Career Serv. Comm'n, 413 So.2d 796, 797 (Fla. 1st DCA 1982) ("[f]act-finding is solely within the province of lower tribunals, either administrative or judicial"). Keystone alleged in its protest and petition that the contract did not qualify for exemption, and that AHCA's insistence that it did was a subterfuge to avoid the competitive bidding requirements of chapter 287. We must accept those allegations as true for purposes of this appeal. See Mid-Chattahoochee River Users v. Fla. Dep't of Envtl. Prot., 948 So.2d 794, 796 (Fla. 1st DCA 2006) ("[i]n determining whether a party has standing to seek a formal administrative hearing, the allegations contained in the party's petition must be taken as true"). The allegations are sufficient to demonstrate standing. See Fairbanks, Inc. v. State Dep't of Transp., 635 So.2d 58, 60-61 (Fla. 1st DCA 1994) (a party claiming that an agency has sought to subvert the purpose of competitive bidding has standing to challenge such action as fraudulent, arbitrary, illegal or dishonest in a section 120.57 proceeding).
We reverse AHCA's final order dismissing Keystone's protest and petition for lack of standing, and remand with directions that AHCA refer the protest and petition to the Division of Administrative Hearings for a formal hearing. Should the administrative law judge conclude following an evidentiary hearing that the contract is exempt from the competitive bidding process outlined in chapter 287, Florida Statutes, by virtue of the section 287.057(5)(f)6 exemption, she shall dismiss the protest and petition on the authority of University of South Florida College of Nursing v. State Department of Health, 812 So.2d 572 (Fla. 2d DCA 2002). See Sys. Components Corp. v. Fla. Dep't of Transp., 14 So.3d 967, 973 n. 4 (Fla.2009) ("[i]n the absence of inter-district conflict or contrary precedent from th[e Supreme] Court, it is absolutely clear that the decision of a district court of appeal is binding precedent throughout Florida") (citing Pardo v. State, 596 So.2d 665, 666 (Fla. 1992)); Scottsdale Ins. Co. v. Desalvo, 666 So.2d 944, 946 (Fla. 1st DCA 1995). Should the administrative law judge conclude that the contract is not exempt from the competitive bidding process, she shall resolve the protest and petition on the merits.
REVERSED and REMANDED, with directions.
PADOVANO and THOMAS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1559851/ | 20 So.3d 396 (2009)
John Thomas ROSS, Appellant,
v.
Dorothy Joy ROSS, Appellee.
No. 4D08-1871.
District Court of Appeal of Florida, Fourth District.
October 7, 2009.
Rehearing Granted in Part and Denied in Part November 17, 2009.
*397 Nancy A. Hass of Nancy A. Hass, P.A., Hallandale Beach, for appellant.
Il Young Choi of Choi & Menezes, LLP, Miami, for appellee.
WARNER, J.
In the final judgment of dissolution, the trial court treated, as a marital asset, life insurance proceeds which the husband received after the filing of the petition of dissolution. We reverse, holding that as of the date of the filing of the petition, the term policy was not a marital asset.
A petition for dissolution of marriage between the husband and wife was filed in 2006 after six years of marriage. Both before and throughout the marriage, the husband and his brother operated several companies dealing in landscaping and nursery plants. In 2002, the brothers purchased "key man" insurance from their insurance agent. Each brother secured two $500,000 term life insurance policies. The applications of insurance admitted into evidence at trial clearly show that the brother was the owner of the policy insuring the brother's life with the husband as his beneficiary, and the husband owned the policy insuring the husband's life with the brother as the beneficiary. Copies of the policies were not admitted as evidence. The husband confusingly testified that he owned the policy insuring his brother's life, and he was his brother's beneficiary but then retracted that contention and said he really did not know which policies he owned. His accountant testified that the brother owned the policy insuring the brother's life, and the wife's accountant conceded that it appeared that the brother owned the policies on the brother's life. The business paid the premiums for all of the life insurance policies.
Tragically, the brother was killed in an accident a few months after the petition was filed. The husband was paid $1,066,000 on the policies, and at trial the wife claimed that the proceeds constituted a marital asset subject to equitable distribution. In the final judgment the trial court found that "these insurance policies and the parties' beneficial interests clearly existed as of the date of filing which is the cut-off date for identification and classification of marital assets...." The court treated the proceeds paid to the husband as a marital asset valued at the payout of $1,066,000 and included them in the equitable division of marital property. The husband appeals the trial court's final judgment.
The husband contends that the insurance proceeds he received as a beneficiary under the policy were an asset acquired after the filing of the petition of dissolution of marriage and thus not a "marital asset" within the meaning of the statute. The wife contends that because they were purchased with marital funds, they were a marital asset. We agree with the husband that the policies were not a marital asset subject to equitable distribution.
Section 61.075(6)(a), Florida Statutes (2006), defines marital assets as including "assets acquired ... during the marriage, individually by either spouse or jointly by them." The statute does not define "asset." Black's Law Dictionary 125 (8th ed. 2004) defines "asset" as "an item that is owned and has value." Marital assets, thus, are items having value. The cut-off date for determining marital assets in this case is the date of the filing of the petition of dissolution. § 61.075(7), *398 Fla. Stat. Thus, we must determine whether and to what extent the insurance policies insuring the brother's life had value at the time of the filing of the petition.
Although the parties argued over whether the husband was the "owner" of the policy insuring his brother's life, the determination of whether the proceeds of the policy are marital assets turns on the husband's status as a beneficiary. The value of an owner's interest in a life insurance policy is the amount of money that the owner may receive by cancelling it, i.e., its cash value. The owner's interest is separate from the interest as a beneficiary, unless that interest is irrevocable, something not proved in this case. The beneficiary has no beneficial interest or right in the policy or to the proceeds. The beneficiary possesses only an expectancy during the insured's life. See Pendas v. Equitable Life Assurance Soc'y, 129 Fla. 253, 176 So. 104 (1937); Lindsey v. Lindsey, 342 Pa.Super. 72, 492 A.2d 396, 398 (1985) ("the naming of a beneficiary on a life insurance policy vests nothing in that person during the lifetime of the insured; the beneficiary has but a mere expectancy"). We deem that this principle applies even where the husband is also the owner, because the owner can change the beneficiary.
Two cases demonstrate that insurance proceeds triggered by an event occurring after the filing of a divorce are not a marital asset. In Lindsey the husband owned a policy on which he named the wife as beneficiary. After the parties filed for divorce, the husband removed the wife as beneficiary and substituted another woman. During the proceedings, the husband died, and the wife attempted to claim the policy proceeds. The court determined that the proceeds were not a marital asset. Only the cash surrender value of the policy constituted a marital asset in the divorce.
Lindsey relied on Bishop v. Eckhard, 607 S.W.2d 716 (Mo.Ct.App.1980), in which a husband changed the beneficiary of his insurance policy from his wife to his daughter during marital dissolution proceedings. The husband then died, and the wife claimed the policy proceeds as a marital asset. In rejecting that claim, the court said:
The appellant's argument that an insurance policy on the life of one of the parties involved in a dissolution action constitutes marital property is misplaced. To determine the parties' assets in a dissolution action a whole life insurance policy becomes marital property because of its cash value. It is not to be considered on the basis of the potential for future proceeds.
Id. at 717-18. Although both Lindsey and Bishop deal with insurance on the life of the husband involved in a dissolution action, the principles involved also apply to any policy owned by the spouses, even if insuring the life of another.
Life insurance policies with no cash surrender value are not treated as marital assets, because a term policy has no value until the contingency of the death of the insured occurs. See Vaughan v. Vaughan, 741 So.2d 1221 (Fla. 2d DCA 1999), receded from on other grounds, Luszcz v. Lavoie, 787 So.2d 245 (Fla. 2d DCA 2001) (noting that a term policy with no cash value did not constitute a marital asset). This is the general view around the country. See C.M.D. v. J.R.D., 710 S.W.2d 474 (Mo.Ct.App.1986); McGovern v. Broadstreet, 720 P.2d 589 (Colo.Ct.App.1985); In re Marriage of Lorenz, 146 Cal.App.3d 464, 194 Cal.Rptr. 237 (1983); Grost v. Grost, 561 S.W.2d 223 (Tex.Civ.App.1977). Even in the standard family law financial affidavit life insurance is listed in the asset column but as "cash surrender value," indicating that term insurance with no cash *399 surrender value is not an asset to be listed. See Fla. Family Law Form 12.902(c). The policies in this case were term policies. The policy proceeds were not a marital asset.
The cases relied on by the wife are distinguishable. She cites Johnson v. Johnson, 847 So.2d 1157 (Fla. 5th DCA 2003), as holding that where marital funds pay for a life insurance policy, the proceeds are a marital asset. The Johnson court did hold that life insurance proceeds from a policy purchased by the husband on his father using marital assets must be divided between the parties; however, the facts related in Judge Sharp's dissent suggest that the father died prior to the parties' separation. Thus, the proceeds were marital assets, because the policy had been purchased with marital funds and the husband had received the proceeds prior to the filing of the dissolution.
The wife cites Arnold v. Arnold, 967 So.2d 392 (Fla. 1st DCA 2007), for the proposition that the fact that life insurance proceeds may not be paid until later does not prevent them from being classified as marital assets. Arnold did not involve life insurance but deferred retirement benefits. These are marital assets under section 61.075(6)(a)1.d. which provides that marital assets include both "vested and non-vested benefits ... accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs." The deferred retirement benefits involved in Arnold were "accrued during the marriage."
The insurance proceeds received by the husband were not benefits "accrued during the marriage." Nor were the term life insurance proceeds a retirement or insurance plan. Applying the principle of statutory construction that the meaning of particular terms of a statute may be ascertained by reference to the words associated with it in the statute, see City of Homestead v. Johnson, 760 So.2d 80, 84 (Fla. 2000), we conclude that the insurance plans or programs referred to in the statute are those which are intended to create value as an asset, such as whole life insurance involving cash surrender value purchased for retirement planning. Term insurance, payable only upon death, is not in the same class of terms as those set forth in the statute.
The husband's accountant did treat the amount of the premiums paid by the business to secure the policies as a marital asset, even though the evidence suggests that the prepaid premiums might not be refundable and thus not an asset. Despite this, the husband cannot be heard to complain since he offered such in evidence. On remand, the court should include this value in the equitable distribution scheme, rather than the policy proceeds.
We do not address the husband's second issue regarding the equalizing payment ordered by the court to effect equitable distribution, as the court will have to recraft the equitable distribution award to eliminate the insurance policy proceeds.
For the foregoing reasons, we reverse the final judgment and remand with directions to the trial court to eliminate the insurance proceeds as a marital asset and to include the policy premiums in their stead and then to recompute the equitable distribution.
GROSS, C.J., and CIKLIN, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1557470/ | 2766 FRONT, LLC,
v.
HANS BAYER D/B/A BAYER FLOORS.
No. 2009 CA 1558.
Court of Appeals of Louisiana, First Circuit.
March 26, 2010.
Not Designated for Publication
WAYNE J. JABLONOWSKI, SLIDELL Louisiana, Counsel for Defendant/Appellant, Hans Bayer d/b/a Bayer Floors.
PETER B. SLOSS, DONALD R. WING, New Orleans, Louisiana, Counsel for Third Party Defendant/Appellee, Country Mutual Insurance Company.
Before: DOWNING, GAIDRY, and McCLENDON, JJ.
GAIDRY, J.
This appeal is from a trial court judgment sustaining an exception of no cause of action and dismissing the defendant's third party demand without prejudice. We amend the judgment and affirm the amended judgment.
FACTS AND PROCEDURAL HISTORY
Plaintiff, 2766 Front, L.L.C., filed suit against Hans Bayer for fraudulent misrepresentation. The basis for the plaintiff's claims was that when plaintiff contracted with Bayer to have Bayer perform floor installation services as a subcontractor for plaintiff, Bayer represented to plaintiff that he possessed workers' compensation insurance, and based on this representation, plaintiff agreed to pay Bayer an additional fifty cents per square foot for his installation services. Plaintiff was later informed by the Louisiana Workers' Compensation Commission ("LWCC") that Bayer did not possess workers' compensation insurance which was valid in Louisiana, and plaintiff was forced to pay LWCC additional premiums to cover Bayer for the services he performed for plaintiff.
Although Bayer did possess workers' compensation insurance, La. R.S. 23:1161 provides that the State of Louisiana only recognizes workers' compensation insurance issued by authorized companies. Country Mutual Insurance Company ("Country Mutual"), the company from which Bayer obtained workers' compensation insurance, is not authorized in Louisiana.
Bayer filed a third-party demand against Country Mutual alleging that Country Mutual, through its agents, sent insurance certificates evidencing workers' compensation insurance for Bayer to the plaintiff at its Louisiana address; that Bayer relied on these certificates and believed that he was covered by them for work he performed in Louisiana; that Bayer later discovered that the workers' compensation insurance was not valid in Louisiana; and that Country Mutual is liable to Bayer for damages resulting from "its faulty and negligent issuing an insurance certificate evidencing valid insurance to a company doing business in Louisiana, and the reliance by Hans Bayer upon these certificates."
Country Mutual filed an exception of no cause of action, which was sustained by the court, because Bayer's third-party demand does not allege that Country Mutual made any misrepresentations to Bayer by virtue of providing a truthful certificate of insurance. The trial court allowed Bayer thirty days to amend his third-party demand to state a cause of action against Country Mutual, failing which his third-party demand would be dismissed with prejudice.
Bayer amended his third-party demand to allege that Country Mutual knew, and was in the best position to know, that its policies were not valid in the State of Louisiana, and because of its negligence in issuing a policy which it should have known was invalid in Louisiana, Country Mutual breached its contract with Bayer and is therefore liable for any damages sustained by Bayer as a result.
Following this amendment, Country Mutual re-urged its exception of no cause of action on the grounds that Bayer's third-party demand still failed to state a valid cause of action against Country Mutual. Although not in the petition, Bayer's attorney argued that Bayer told the insurance agent that he needed insurance for a job in Slidell, Louisiana, the insurance company faxed certificates of insurance to the plaintiff in Louisiana, and the insurance provided was not sufficient for the state of Louisiana, resulting in damages to Bayer, The trial court sustained Country Mutual's exception of no cause of action and dismissed Bayer's third-party demand without prejudice. It is from this judgment that Bayer appeals, arguing that the court erred in sustaining Country Mutual's exception of no cause of action and in not allowing Bayer to amend his third-party demand again to attempt to state a cause of action.
DISCUSSION
The peremptory exception raising the objection of no cause of action questions whether the law extends a remedy to anyone under the factual allegations of the petition. The purpose of the exception of no cause of action is to determine the sufficiency in law of the petition. Richardson v. Home Depot USA, 00-0393, p. 3 (La.App. 1 Cir. 3/28/01), 808 So. 2d 544, 546.
Generally, the exception of no cause of action is triable solely on the face of the petition and any annexed documents. Woodland Ridge Association v. Cangelosi, 94-2604, p. 3 (La.App. 1 Cir. 10/6/95), 671 So. 2d 508, 510. For purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. The court must determine if the law affords plaintiff a remedy under those facts. Any doubts are to be resolved in favor of sufficiency of the petition. The question, therefore, is whether, in the light most favorable to the plaintiff, and with every doubt resolved in its behalf, the petition states any valid cause of action for relief. Stroscher v. Stroscher, 01-2769, p. 3 (La.App. 1 Cir. 2/14/03), 845 So. 2d 518, 523.
When the grounds of the exception of no cause of action may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed. La. C.C.P. art. 934. Clearly, even if a petition fails to state a cause of action, if the grounds of the objection can be removed by amendment, the plaintiff should be allowed to amend his demand. However, where the grounds for the objection cannot be removed by amendment, the trial court is not required to allow the pleadings to be amended. Treasure Chest Casino, L.L.C. v. Parish of Jefferson, 96-1010, pp. 5-6 (La.App. 1 Cir. 3/27/97), 691 So. 2d 751, 755, writ denied, 97-1066 (La. 6/13/97), 695 So. 2d 982. The decision whether to allow amendment of the pleadings is within the sound discretion of the trial court. Byers v. Edmondson, 97-0831, p. 8 (La.App. 1 Cir. 5/15/98), 712 So. 2d 681, 686, writ denied, 98-1596 (La. 10/9/98), 726 So. 2d 29, cert. denied, 526 U.S. 1005, 119 S. Ct. 1143, 143 L. Ed. 2d 210 (1999); Prudential Insurance Company of America v. CC & F Baton Rouge Development Company, 93-2074, p. 13 (La.App. 1 Cir. 10/7/94), 647 So. 2d 1131, 1139.
Bayer argues on appeal that he has stated a cause of action against Country Mutual because he informed Country Mutual's agents that he was doing flooring work in Louisiana and he needed insurance to cover that work, but they did not provide appropriate insurance. However, these facts were not alleged in either the third party demand or the amended third party demand. When Bayer alleged these facts at the hearing on the exception, counsel for Country Mutual stated "that would be great if the petition said that, but it does not. And we have to go by what is in the third party demand." After a thorough review of the record, we find that the trial court was correct in concluding that Bayer's amended third party demand failed to state a cause of action against Country Mutual. However, since it appears from the facts alleged at the hearing on the re-urged exception that it would be possible to amend the petition to state a cause of action against Country Mutual, the trial court should have allowed Bayer to amend his petition rather than dismissing his third party demand. Therefore, we amend the trial court judgment to provide that Bayer has thirty days to amend his petition to attempt to state a cause of action against Country Mutual.
CONCLUSION
The judgment of the trial court, sustaining Country Mutual's exception of no cause of action and dismissing Bayer's third party demand without prejudice is amended to allow Bayer thirty days to amend his petition to state a cause of action against Country Mutual, and as amended, the judgment is affirmed. Costs of this appeal are to be borne seventy percent by Hans Bayer and thirty percent by Country Mutual.
AMENDED, AND AS AMENDED, AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2453352/ | 255 P.3d 676 (2011)
242 Or. App. 604
STEEPROW
v.
EMPLOYMENT DEPT.;
KINSLOW
v.
EMPLOYMENT DEPT.
A144593
Court of Appeals of Oregon.
May 4, 2011.
Affirmed without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2584132/ | 172 P.3d 193 (2006)
2006 OK 35
Densi HAWORTH, Special Administratrix of the Estate of Brett Dewayne Haworth, Deceased, Plaintiff/Appellee,
v.
Theodore JANTZEN, individually, and as partner in Jantzen Farm and Ranch Enterprises; Mrs. Theodore Jantzen, individually and as partner in Jantzen Farm and Ranch Enterprises; and Allstate Insurance Company, Defendants, and
Oklahoma Farm Bureau Mutual Insurance Company, Policy No. XXXXXXXXX, Policy No. 42165015, Garnishee/Appellant.
No. 101,726.
Supreme Court of Oklahoma.
May 23, 2006.
Rehearing Denied September 11, 2006.
G. Todd Ralstin, Oklahoma City, OK, for Plaintiff/Appellee.
Steve L. Lawson, Oklahoma City, OK, for Garnishee/Appellant.
KAUGER, J.
¶ 1 The dispositive issue presented on certiorari is whether the trial court properly granted summary judgment when it determined that because certain insurance policy exclusions were ambiguous as matter of law, the contract must be construed against the insurer to provide coverage. The Court of Civil Appeals determined that the policy exclusions were unambiguous and did not provide coverage. We hold that because the policy terms are ambiguous, the insurance contract was properly construed against the insurer and we remand the cause to the Court of Civil Appeals to address the assignments of error left unresolved.
FACTS
¶ 2 On June 14, 2001, Theodore Jantzen [Jantzen] parked his 2001 Dodge pickup truck in the entry to a wheat field he farmed near Canton, Oklahoma, on State Highway 58A. While backing out of the field, Jantzen collided with Brett Dewayne Haworth [the deceased], who was traveling north on the highway on his motorcycle. Haworth died from his injuries later that same day in a local hospital.
¶ 3 At the time of the accident, Jantzen carried two insurance policies issued by the appellant, Oklahoma Farm Bureau Mutual Insurance Company [Farm Bureau]: a farm and ranch policy with a $500,000 policy limit and an automobile policy with a $250,000 policy limit. The appellee, the deceased's widow and special administrator of his estate, Densi Haworth [Haworth/widow], brought a negligence action against Jantzen on October 23, 2001.
*195 ¶ 4 On March 7, 2003, the parties stipulated to a judgment of $775,000 which by its terms, included any interest, costs, or other relief that the court could award. The judgment provided that Jantzen pay $25,000 out of his own pocket, Farm Bureau pay the $250,000 limit of the automobile policy, and that Haworth seek the remaining $500,000 through a garnishment proceeding against Farm Bureau so that coverage under the farm and ranch policy could be determined.
¶ 5 On April 21, 2004, Haworth filed garnishment proceedings seeking the $500,000 limit of the farm and ranch policy, as well as pre-judgment and post-judgment interest, attorney's fees, and costs. The court granted summary judgment to the widow on January 18, 2005, finding that because the farm and ranch policy was ambiguous, it had to be construed against Farm Bureau. The trial court awarded Haworth the $500,000 policy limits, which included pre-judgment interest and attorney's fees.
¶ 6 Farm Bureau appealed and on February 11, 2005, the widow filed a counter-petition insisting that the trial court erred in failing to award her reasonable attorney fees, costs, and post-judgment interest. On November 10, 2005, the Court of Civil Appeals reversed and remanded, determining that the farm and ranch policy unambiguously excluded the pickup driven by Jantzen. We granted certiorari on January 30, 2006.
¶ 7 BECAUSE THE POLICY TERMS ARE AMBIGUOUS, THE INSURANCE CONTRACT WAS PROPERLY CONSTRUED AGAINST THE INSURER.
¶ 8 The language in controversy is found in the "EXCLUSIONS" section of Jantzen's farm and ranch policy. The policy provides in pertinent part:
"EXCLUSIONS
Under PERSONAL LIABILITY COVERAGE G and MEDICAL PAYMENTS TO OTHERS COVERAGE H, we do not cover:
1. Bodily injury or property damage arising out of the ownership, maintenance, use or negligent entrustment of: . . .
b. land motor vehicles subject to motor vehicle registration owned or operated or rented or loaned to an insured person . . .
c. land motor vehicles, other than golf carts while used for golfing, if the bodily injury or property damage occurs away from the insured premises . . ." [Emphasis in original.]
¶ 9 Farm Bureau argues that the policy unambiguously excludes coverage of the pickup driven by Jantzen. Haworth contends that the policy exclusions are ambiguous and therefore must be construed to provide coverage. We note at the outset that resolution of this cause does not center around any fact question as to where the pickup was precisely located. When Farm Bureau appealed, it asserted that the trial court erred in granting summary judgment based upon a determination that the policy was ambiguous, not that summary judgment was improper because a material fact issue existed regarding whether the accident occurred off of the premises. We need not be concerned with whether the issue was properly raised for appeal, because the fact question of precisely where the pickup was located is not a material fact question relevant to this cause.
¶ 10 At the trial level, Farm Bureau argued that there were not any disputed facts which could preclude summary judgment. Nevertheless, it also insisted that nothing had been shown to suggest that the 1800 acres described on the declarations page included anything more than the Jantzen's home and surrounding land. This assertion is contrary to the declarations page which includes 120 acres in Dewey County, plus an additional 1600 acres of farmland and contrary to Jantzen's affidavit which states his residence consisted of only 120 acres in Dewey County. Farm Bureau presented nothing to support an assertion that the field at issue was not part of the 1800 acres covered on the declarations sheet of the policy as "farm premises."
¶ 11 Farm Bureau also alternatively argued that, although the pickup may have been partially in the field or at the entrance to the field at the time of the accident, the injury occurred at the back of the pickup which was on the highway and as a result, *196 the accident was excluded by the policy provision which excludes coverage for injuries or damage occurring away from the insured premises. This argument concerning the point of impact being at the back of the pickup ignores the fact that control of the pickup remained with the driver.
¶ 12 Pursuant to 69 O.S.2001 § 1202, an owner of land bound by a highway is presumed to own the property to the center of the road, unless the contrary is shown.[1] A road is generally only an easement for public use and fee simple title is vested in the abutting landowners burdened only by an easement.[2] Farm Bureau did not attempt to rebut this presumption. Accordingly, regardless of whether a portion of the pickup was on the highway and in the entrance to the field, it was in fact located within the premises of the property owner as a matter of law.
¶ 13 An insurance policy is a contract,[3] and a contract is to be construed as a whole, giving effect to each of its parts.[4] The interpretation of an insurance contract and whether it is ambiguous is determined by the court as a matter of law.[5] An insurance contract is ambiguous only if it is susceptible to two constructions on its face from the standpoint of a reasonably prudent layperson, not from that of a lawyer.[6] However, this Court will not indulge in forced or constrained interpretations to create and then construe ambiguities in insurance contracts.[7]
¶ 14 The insurer employs the terms "land motor vehicle" and "land motor vehicles subject to registration" in the policy exclusion in an attempt to limit liability. However, the terms "land motor vehicle" and "land motor vehicle subject to registration" are not defined in the policy. A "vehicle" is statutorily defined as any device in, upon, or by which any person or property may be transported or drawn upon a highway.[8] "Motor vehicle" is statutorily defined as any self-propelled vehicle.[9] "Registration" pertains to the requirement *197 to obtain a certificate or license plate from the state.[10]
¶ 15 In Oklahoma, all motor vehicles, travel trailers, commercial trailers, all-terrain vehicles, and motorcycles must be registered.[11] Pickup trucks are subject to registration in Oklahoma. Adding the adjective "land" to the term "motor vehicle" does not create any further reasonable ambiguity in this case. Taken in their ordinary sense, the terms "land motor vehicle subject to registration" and "land motor vehicle" unambiguously apply to Jantzen's pickup truck.
¶ 16 The ambiguity in the policy language lies in the apparent contradiction of exclusions 1(b) and 1(c). Exclusion 1(b) provides that Farm Bureau will not cover damage arising out of the use of land motor vehicles subject to registration. Exclusion 1(c) provides that Farm Bureau will not cover damage arising out the use of land motor vehicles if the injury or damage occurs away from the insured premises. This language is conflicting, confusing, and ambiguous. An insured could reasonably construe these provisions to mean that coverage of injury or damage arising out of the use of a land motor vehicle is: 1) always excluded; 2) only excluded if the vehicle is subject to registration; 3) only excluded if the injury occurs away from the insured premises; or 4) only excluded if the vehicle is not required to be registered and if the injury occurs away from the insured premises.
¶ 17 If it is not ambiguous, we accept the contract language in its plain, ordinary, and popular sense.[12] When an insurance contract provision is ambiguous, words of inclusion will be liberally construed in favor the insured, and words of exclusion will be strictly construed against the insurer.[13] In construing an ambiguity or uncertainty against the insurer and in favor of the insured, Oklahoma looks to the objectively reasonable expectations of the insured to fashion a remedy.[14] When an insurer desires to limit its liability under a policy, it must employ language that clearly and distinctively reveals its stated purpose.[15]
*198 ¶ 18 Construing the motor vehicle exclusion ambiguity in the insured's favor and against the insurer, we determine that the farm and ranch policy does not exclude coverage for Jantzen's personal liability for the deceased's personal injury arising out of the use of the Dodge pickup (a land motor vehicle) occurring on the insured premises. Because the material facts are undisputed, the trial court properly granted summary judgment.
CONCLUSION
¶ 19 Summary judgment is properly granted when there are no disputed questions of material fact and the moving party is entitled to judgment as a matter of law.[16] When summary judgment involves only legal questions, the standard of review of a trial court's grant of summary judgment is de novo.[17] Insurance contracts are contracts of adhesion.[18] An insurer has the advantage of drafting the contract and holds an uneven bargaining position. Consequently, any ambiguity in the language of the contract must be strictly construed against the insurer.[19] Because the policy exclusions are ambiguous, the trial court properly construed the insurance contract.
¶ 20 However, rather than affirm the trial court judgment, we remand the cause to the Court of Civil Appeals. Rule 1.80(b) of the Oklahoma Supreme Court Rules, 12 O.S.2001 Ch. 15, App. 1,[20] provides that should we vacate an opinion of the Court of Civil Appeals, we may address the matters not decided or remand for determination of issues left unresolved by the Court of Civil Appeals's decision.[21] The Court of Civil Appeals held that the policy exclusions were unambiguous and were dispositive of the issues regarding post-judgment interest, costs and attorney fees raised in the counter-petition. In doing so, it did not visit those issues challenged on appeal. We exercise our discretion to remand the cause to the Court of Civil Appeals, to address the assignments of error left unresolved and we express no view as to the merits of the unresolved issues.
CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS OPINION VACATED AND MATTER REMANDED TO COURT OF CIVIL APPEALS FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.
WATT, C.J., HARGRAVE, KAUGER, EDMONDSON, COLBERT, JJ., concur.
WINCHESTER, V.C.J., LAVENDER, OPALA, TAYLOR, JJ., dissent.
NOTES
[1] Title 69 O.S.2001 § 1202 provides:
"An owner of land bounded by a road or street is presumed to own to the center of the way, but the contrary may be shown."
[2] See, Town of Reydon v. Anderson, 1982 OK 92, ¶ 12, 649 P.2d 541; Bd. of Trustees of Town of Taloga v. Hadson Ohio Oil Co., 1978 OK 16, ¶ 13, 574 P.2d 1038.
[3] American Economy Ins. Co. v. Bogdahn, 2004 OK 9, ¶ 8, 89 P.3d 1051; Spears v. Shelter Mutual Ins. Co., 2003 OK 66, ¶ 4, 73 P.3d 865; Cranfill v. Aetna Life Ins. Co., 2002 OK 26, ¶ 5, 49 P.3d 703.
[4] Bituminous Casualty Corp. v. Cowen Const. Inc., 2002 OK 34, ¶ 9, 55 P.3d 1030; Dodson v. St. Paul Ins. Co., 1991 OK 24, ¶ 12, 812 P.2d 372. Title 15 O.S.2001 § 157 provides:
"The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the others."
Title 36 O.S.2001 § 3621 provides:
"Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended, or modified by any rider, endorsement, or application attached to and made a part of the policy."
[5] Max True Plastering Co. v. U.S.F. & G. Co., 1996 OK 28, ¶ 20, 912 P.2d 861; Dodson v. St. Paul Ins. Co., see note 4, supra; Harjo Gravel Co. v. Luke-Dick Co., 1944 OK 268, ¶ 10, 153 P.2d 112.
[6] Spears v. Shelter Mutual Ins. Co., see note 3, supra at ¶ 9; Cranfill v. Aetna Life Ins. Co., see note 3, supra at ¶ 5; Max True Plastering Co. v. U.S.F. & G. Co., see note 5, supra.
[7] Max True Plastering Co. v. U.S.F. & G. Co., see note 5, supra.
[8] Title 47 O.S. Supp.2005 § 1-186 provides:
"A. A vehicle is any device in, upon, or by which any person or property is or may be transported or drawn upon a highway excepting devices used exclusively upon stationary rails or tracks.
B. As used in this title, the term "vehicle" shall not include:
1. Implements of husbandry, as defined in Section 1-125 of this title;
2. Electric personal assistive mobility devices, as defined in Section 10114A of this title; or
3. Motorized wheelchairs, as defined in Section 1-136.3 of this title."
Because the statute in effect at the time of the accident is substantially similar to the current statute, references are to the current version.
[9] Title 47 O.S. Supp 2005 § 1-134 provides:
"A. A motor vehicle is:
1. Any vehicle which is self-propelled; or
2. Any vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails.
B. As used in this title, the term "motor vehicle" shall not include:
1. Implements of husbandry, as defined in Section 1-125 of this title;
2. Electric personal assistive mobility devices as defined in Section 1-114A of this title;
3. Motorized wheelchairs, as defined in Section 1-136.3 of this title; or
4. Vehicles moved solely by human or animal power."
Because the statute in effect at the time of the accident is substantially similar to the current statute, references are to the current version.
[10] Title 47 O.S.2001 § 1-153 provides:
"The registration certificate or certificates and registration plates issued under the laws of this state pertaining to the registration of vehicles."
[11] Title 47 O.S.2001 § 1137.3 provides in pertinent part:
"The purchaser of every new motor vehicle, travel trailer or commercial trailer shall register or license the same within thirty (30) days from the date of purchase. . . . "
Title 47 O.S. Supp.2005 § 1115.3 provides:
"A. Except as otherwise provided by this section, all-terrain vehicles and motorcycles used exclusively off roads or highways shall be registered once with the Oklahoma Tax Commission within thirty (30) days after purchase.
B. For all-terrain vehicles or motorcycles used exclusively off roads or highways purchased prior to July 1, 2005, registration, as otherwise required by Section 1115 of Title 47 of the Oklahoma Statutes, shall not be required, but shall be allowed at the option of the owner of the all-terrain vehicle or motorcycle used exclusively off roads or highways.
C. All-terrain vehicles or motorcycles used exclusively off roads or highways owned or purchased by a person that possesses an agricultural exemption pursuant to Section 1358.1 of Title 68 of the Oklahoma Statutes may be registered as provided by this section, but shall not require registration."
Section 1115.3 became effective July 1, 2005. Prior to enactment, registration was not required for off-road all-terrain vehicles.
[12] Cranfill v. Aetna Life Ins. Co., see note 3, supra at ¶ 5; McDonald v. Schreiner, 2001 OK 58, ¶ 7, 28 P.3d 574; Littlefield v. State Farm Fire & Casualty Co., 1993 OK 102, ¶ 7, 857 P.2d 65.
[13] Spears v. Shelter Mutual Ins. Co., see note 3, supra at ¶ 5; Simpson v. Farmers Ins. Co., Inc., 1999 OK 51, ¶ 10, 981 P.2d 1262; Max True Plastering Co. v. U.S.F. & G. Co., see note 5, supra at ¶ 8; Littlefield v. State Farm Fire & Casualty Co., see note 12, supra; Phillips v. Estate of Greenfield, 1993 OK 110, ¶ 10, 859 P.2d 1101.
[14] Spears v. Shelter Mutual Ins. Co., see note 3, supra at ¶ 6; Max True Plastering Co. v. U.S.F. & G. Co., see note 5, supra at ¶ 7.
[15] Spears v. Shelter Mutual Ins. Co., see note 3, supra at ¶ 7; Max True Plastering Co. v. U.S.F. & G. Co., see note 5, supra at ¶ 7.
[16] Wathor v. Mutual Assurance Administrators, Inc., 2004 OK 2, ¶ 4, 87 P.3d 559; Oliver v. Farmers Ins. Group of Companies, 1997 OK 71, ¶ 6, 941 P.2d 985; Indiana Nat. Bank v. State Dept. of Human Services, 1993 OK 101, ¶ 10, 857 P.2d 53.
[17] Head v. McCracken, 2004 OK 84, ¶ 3, 102 P.3d 670; In re Estate of MacFarline, 2000 OK 87, ¶ 3, 14 P.3d 551; Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051.
[18] Spears v. Shelter Mutual Ins. Co., see note 3, supra at ¶ 5; Max True Plastering Co. v. U.S.F. & G. Co., see note 5, supra at ¶ 7.
[19] Max True Plastering Co. v. U.S.F. & G. Co., see note 5, supra at ¶ 8; Littlefield v. State Farm Fire & Casualty Co., see note 12, supra; Dodson v. St. Paul Ins. Co., see note 4, supra.
[20] Rule 1.180(b), Supreme Court Rules, 12 Ohio St. 2001 Ch. 15, App. 1, provides:
"Review of Certiorari. Issues not presented in the petition for certiorari may not be considered by the Supreme Court. Provided, however, if the Court of Civil Appeals did not decide all of the properly preserved and briefed issues, the Supreme Court may should it vacate the opinion of the Court of Civil Appeals address such undecided matters or it may remand the cause to the Court of Civil Appeals for that Court to address such issues. The case will then be decided on the reviewable issue or issues presented in the briefs therefore filed, unless for good cause the filing of additional briefs be then allowed. The Supreme Court may should it vacate the opinion of the Court of Civil Appeals address any issue properly raised in the appeal or on certiorari. Hough v. Leonard, 867 P.2d 438 (Okla.1993)."
[21] Boren v. Thompson & Assoc., 2000 OK 3, ¶ 26, 999 P.2d 438; Hough v. Leonard, 1993 OK 112, ¶ 15, 867 P.2d 438. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/311632/ | 479 F.2d 1259
Jordan Jay KING et al., Plaintiffs-Appellants,v.KANSAS CITY SOUTHERN INDUSTRIES, INC., et al., Defendants-Appellees.
No. 72-1734.
United States Court of Appeals,Seventh Circuit.
Argued and Decided June 12, 1973.
Lowell E. Sachnoff, Chicago, Ill., for plaintiffs-appellants.
A. Bradley Eben, George B. Christensen, Edward H. Hatton and Joan M. Hall, Chicago, Ill., Landon H. Rowland, Kansas City, Mo., Marvin Schwartz, New York City, Arthur Susman, Harry Schulman, Harry A. Young, Jr., Chicago, Ill., for defendants-appellees.
Before PELL and STEVENS, Circuit Judges, and ESCHBACH, District Judge.*
PER CURIAM.
1
This is an appeal by a group of plaintiffs in only one of six consolidated cases pending in the district court. In the instant case, the district court on June 22, 1972, 56 F.R.D. 96, entered its order denying plaintiffs' motion to have this action designated as a class action. Plaintiffs filed their notice of appeal to this court from that order and concede that they base their right of appeal, if any, on 28 U.S.C. Sec. 1291.
2
Defendant-appellee Kansas City Southern Industries, Inc., has filed its motion to dismiss the appeal for the reason that the order below was an interlocutory order not appealable under 28 U. S.C. Sec. 1291. We agree.
3
The question before the court on the motion to dismiss involves a much disputed question as to whether the dismissal of a class action portion of a complaint is appealable. In Thill Securities Corp. v. New York Stock Exchange, 469 F.2d 14, 17 (7th Cir. 1972), this court held that the denial of a motion to strike a class action was not an appealable order under 28 U.S.C. Sec. 1291. We now hold that the present order is not appealable under Sec. 1291, necessitating the dismissal of the appeal for lack of jurisdiction.
4
In so holding, we follow Hackett v. General Host Corp., 455 F.2d 618 (3d Cir. 1972), cert. denied, 407 U.S. 925, 92 S. Ct. 2460, 32 L. Ed. 2d 812; Gerstle v. Continental Airlines, Inc., 466 F.2d 1374 (10th Cir. 1972); and our analogous prior decision in Jumps v. Leverone, 150 F.2d 876 (7th Cir. 1945). We decline to adopt and accordingly reject the socalled "death knell" theory originally enunciated in Eisen v. Carlisle & Jacquelin, 370 F.2d 119 (2d Cir. 1966), cert. denied, 386 U.S. 1035, 87 S. Ct. 1487, 18 L. Ed. 2d 598 (1967). Likewise we do not find the "collateral order" doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949), applicable to the type of order here involved.
5
On June 11, 1973, the plaintiffs below purported to secure an order from the district court amending, on a nunc pro tunc basis, the order of June 22, 1972, which amended order would have permitted, pursuant to 28 U.S.C. Sec. 1292(b), an appeal on the class action status as involving a controlling question of law as to which there is a substantial ground for difference of opinion. Our present disposition does not reach the issues raised by that action and we express no opinion as to whether the power existed in the district court to amend its previous order on a nunc pro tunc basis while an appeal was pending in this court, nor do we express an opinion as to whether this court in its discretion should permit an appeal to be taken from such order in the event it was properly entered below.
6
Appeal dismissed.
*
Honorable Jesse E. Eschbach is sitting by designation from the United States District Court for the Northern District of Indiana | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/198588/ | 186 F.3d 52 (1st Cir. 1999)
PAUL McCAFFERTY, Plaintiff, Appellee,v.LOCAL 254, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO Defendant, Appellant.
No. 98-1909.
United States Court of Appeals for the First Circuit.
Heard Feb. 5, 1999.Decided Aug. 2, 1999.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS[Copyrighted Material Omitted]
Gabriel O. Dumont, Jr. for appellant.
David B. Rome for appellee.
Before Boudin, Circuit Judge, Campbell, Senior Circuit Judge, and Lipez, Circuit Judge.
LIPEZ, Circuit Judge.
1
In February 1998, Paul McCafferty filed a complaint in the district court requesting a preliminary injunction against his union, Local 254 of the Service Employees International Union (hereinafter "the Local" or "Local 254"). McCafferty claimed that Local 254 had "infringed upon his right to seek office within Local 254 . . . by refusing to and failing to comply with his reasonable requests for a list of [Local 254-represented] companies/employers and their locations . . . and for the names and addresses of Local 254 members to allow him to distribute campaign literature." McCafferty predicated his claim to relief on Title I and Title IV of the Labor-Management Reporting and Disclosure Act of 1959 (the LMRDA). After the Local filed its opposing motion requesting the denial of McCafferty's request for preliminary relief and the dismissal of his action, the district court held a hearing and subsequently issued a preliminary injunction granting McCafferty some of the relief he requested. The district court also awarded McCafferty attorney's fees in a later order. This appeal contesting the award of attorney's fees followed.
2
We conclude that McCafferty is entitled to attorney's fees for prevailing on his Title I claim but he is not entitled to attorney's fees for his Title IV claim. Given the court's undifferentiated award of attorney's fees for McCafferty's claims, we must vacate that award and remand for a new determination of attorney's fees. We begin our explanation of this result with a detailed account of the relevant facts and procedure.
I.
3
McCafferty, at all times relevant to this opinion a member in good standing of Local 254, wanted to run for a union office; nominations were scheduled for March 1998. On November 26, 1997 he wrote to Local 254's recording secretary requesting, inter alia, a copy of Local 254's by-laws, blank nomination papers, a copy of any union rules governing fund raising, and "a list of Local 254 represented companies."1 On December 4, 1997, Local 254's recording secretary responded by sending McCafferty a copy of Local 254's Constitution and by-laws, and pertinent sections of the LMRDA. He also informed McCafferty that nomination papers had not yet been printed and that "Local 254 has no specific rules on governing fund raising." The LMRDA provisions which the Local provided to McCafferty included 29 U.S.C. § 481(c), which sets forth the Local's obligation "to comply with all reasonable requests of any candidate to distribute by mail or otherwise at the candidate's expense campaign literature in aid of such person's candidacy to all members in good standing." The letter said nothing about the list of represented companies that McCafferty had requested.
4
On January 28, 1998, McCafferty again wrote to Local 254's recording secretary requesting "a list of Local 254 represented companies/employers and their locations," reiterating his requests for blank nomination papers and the Local's fund raising rules, and adding a new request that "the Local provide [him] with mailing labels containing the names and addresses of voting Local 254 members." On February 1, 1998, Local 254 distributed a newsletter to all members, including McCafferty, informing members of official nominating procedures and directions for obtaining nominating papers.2 On February 3, 1998, the recording secretary mailed a letter to McCafferty which included the following statements:
5
There is no requirement to provide prospective candidates with a listing of contracted employers. You may, however, inspect a list of Local 254-contracted employers by appointment at the Union Office. You may not copy the list.
6
Campaign Literature: Reasonable requests of any candidate for the Local to mail campaign literature at the candidates' expense will be complied with. Payment to cover the expenses involved in such mailing will be paid in advance. Other than distribution of literature made at candidate's expense, there will be no mailings of campaign literature by the Local.
7
Membership Lists: Every candidate shall be given the right to inspect the printout membership list of Local 254. Special arrangements will be made to set up a separate room where the membership list will be available for inspection . . . . No candidate shall be furnished a copy of the membership list. Candidates may not copy the membership list.
8
This letter, although postmarked on February 4, 1998, did not reach McCafferty until approximately one month later. Apparently, a change of address had been filed for McCafferty which temporarily misdirected his mail to Las Vegas, Nevada.3
9
On February 6, 1998, McCafferty filed the instant suit, seeking an injunction to compel Local 254 to provide him with "(a) a list of all Local 254 bargaining units and locations; and (b) mailing labels of all voting members in Local 254." On February 12, the Local responded in writing to McCafferty's request for a preliminary injunction. While acknowledging its duty under Title IV to "comply with any reasonable request that the Union distribute at the member's expense campaign literature," Local 254 denied any "requirement under Title I of the LMRDA that Local 254 furnish McCafferty with a list of Local 254 employers and locations." Local 254 attached to its response a copy of its February 3, 1998 letter and a sworn affidavit from the recording secretary affirming that he had mailed the letter on February 3. McCafferty apparently saw the Local's February 3 letter for the first time when it was filed with the court.
10
The district court held a hearing on McCafferty's preliminary injunction motion on February 13, 1998. At the hearing, Local 254 reiterated its position that McCafferty had no right to a copy of either a list of contracting employers or the membership list. The district court inquired whether Local 254 would agree to post a list of employers and their locations and allow that list to be copied. The Local assented and, later that day, posted the list.
11
On February 16, McCafferty forwarded a draft preliminary injunction to Local 254 memorializing the commitments the Local had made at the February 13th hearing. On February 17, Local 254 notified McCafferty that it would oppose the issuance of an injunction and that a list of Local 254 employers and addresses had been posted at the Local's offices since February 13, 1998.4 According to the terms of the draft preliminary injunction, such a list was to be posted "by the close of business February 19, 1998."
12
On February 17, McCafferty filed his proposed injunction with the court and Local 254 filed its opposition and proposed order of dismissal. On that same day, the district court issued the preliminary injunction in its proposed form, adding the handwritten notation that it was issued "upon agreement of the parties." The preliminary injunction ordered the Local to post a list of bargaining units by employer and location; to allow the copying of that list; and to comply with any candidate request to mail campaign literature so long as the candidate paid in advance the cost of such mailing. The preliminary injunction also included a briefing schedule on the plaintiff's claim for attorney's fees and costs.
13
On July 9, 1998, the district court issued an opinion and order on attorney's fees setting forth the basis for the issuance of the preliminary injunction and the award of attorney's fees. With respect to McCafferty's request for a list of all bargaining units represented by Local 254 by employer and location, the court concluded that this request was "intended to remedy th[e] imbalance of access to information required for nomination." As such, the court found that the claim arose under Title I of the LMRDA, and it awarded attorney's fees to McCafferty pursuant to Hall v. Cole, 412 U.S. 1 (1973). With respect to McCafferty's request for mailing labels with the addresses of union members, the court concluded that "McCafferty had a clearly established right to have the union provide him with mailing labels containing the names and addresses of voting union members" for the purpose of arranging "at his own expense, for a timely mailing of campaign literature prior to the convention at which nominations would be made." Relying on International Organization of Masters, Mates and Pilots v. Brown, 498 U.S. 466, 476 (1991) for this "clearly established" right, the court characterized the Local's unwillingness to provide McCafferty with the requested mailing labels as "verg[ing] on the frivolous." Although the court acknowledged that the mailing label claim arose under Title IV of the LMRDA, it found that "an award of fees is appropriate on this claim as well." The court ordered the Local to pay McCafferty an aggregate award of attorney's fees in the amount of $9,388.35 for his Title I and Title IV claims. This appeal followed.
II.
14
Before analyzing the specific claims at issue in this case, we set forth some general principles of law applicable to these claims.
A. General Principles
15
The LMRDA protects the equal rights of union members to participate in the internal affairs of their unions. In enacting the LMRDA, Congress found that "it is essential that labor organizations . . . and their officials adhere to the highest standards of responsibility and ethical conduct in administering the affairs of their organizations," and declared that the LMRDA was designed "to eliminate or prevent improper practices on the part of labor organizations." 29 U.S.C. §§ 401(a), (c). Title I of the LMRDA, 29 U.S.C. §§ 411-15, "provides a Bill of Rights for union members, guaranteeing equal rights and privileges to nominate and vote for candidates, as well as freedom of speech and assembly and protection from improper discipline." Molina v. Union De Trabajadores De Muelles, 762 F.2d 166, 167 (1st Cir. 1985) (internal quotation marks omitted). The "typical Title I claim involves an allegation of unequal treatment among union members." Id. at 167 (quoting Local No. 28, Furniture and Piano Moving, Furniture Store Drivers, Helpers, Warehousemen and Packers v. Crowley, 467 U.S. 526, 539 (1984)). The focus of Title IV is more limited. It sets out detailed regulations "aimed solely at protecting union democracy through free and democratic elections." Id. These regulations include the requirement that unions must "comply with all reasonable requests of any candidate to distribute by mail or otherwise at the candidate's expense campaign literature in aid of such person's candidacy." 29 U.S.C. § 481(c).
16
The LMRDA includes separate enforcement mechanisms for Title I and Title IV. "Title I is enforceable in federal court through a private action filed by the aggrieved union members." Molina, 762 F.2d at 167; see also 29 U.S.C. § 412. "Enforcement of Title IV rests with the Secretary of Labor," Molina, 762 F.2d at 167, with one exception. The provision of Title IV obligating unions to mail candidates' campaign literature, 29 U.S.C. § 481(c), is "enforceable at the suit of any bona fide candidate for [union office] in the district court of the United States." 29 U.S.C. § 481 (c); International Organization of Masters, Mates & Pilots v. Brown, 498 U.S. 466 (1991) ("[U]nlike other rights created by Title IV that are judicially enforceable only in actions brought by the Secretary of Labor, the § [481(c)] right is directly enforceable in an action brought by the individual union member); see also Mims v. Teamsters Local 728, 821 F.2d 1568, 1571 (11th Cir. 1987) (recognizing that § 481(c) "is the only privately enforceable provision in Title IV").
17
While neither Title I nor Title IV explicitly authorizes the award of attorney's fees to prevailing union member-litigants, the Supreme Court has held that "the allowance of counsel fees to the successful plaintiff in a suit brought under [Title I] of the LMRDA is consistent with both the Act and the historic equitable power of federal courts to grant such relief in the interests of justice." Hall v. Cole, 412 U.S. 1, 14 (1973). Recognizing that "the traditional American rule ordinarily disfavors the allowance of attorney's fees in the absence of statutory . . . authorization," the Court reasoned that a successful Title I litigant "render[s] a substantial service to his union as an institution and to all of its members." Id. at 4, 8 (footnotes omitted). The Supreme Court compared suits under Title I of the LMRDA to shareholder suits where the "successful litigation confers 'a substantial benefit on the members of an ascertainable class,'" (in the LMRDA context, the union membership) and it is therefore equitable to divide the financial burden among the benefitted class. Id. at 6 (quoting Mills v. Electric Auto-Lite Co., 396 U.S. 375, 393-94 (1970)). The courts of appeals which have faced the issue have found this reasoning equally applicable to meritorious claims to enforce the mailing provision of § 481(c), Title IV's only privately enforceable provision. See Mims, 821 F.2d at 1571; Bliss v. Holmes, 867 F.2d 256, 258 (6th Cir. 1988).
18
Local 254 objects to the court's award of attorney's fees for McCafferty's employer list claim pursuant to Title I and his mailing label claim pursuant to Title IV. We consider each claim in turn.
B. List of Represented Employers
19
The Local characterizes McCafferty's demand for access to the employer list as a challenge to a general, evenly applied rule rather than a challenge premised on any discriminatory treatment. In the absence of such discriminatory treatment, the sine qua non of a Title I claim, McCafferty's claim would arise exclusively under Title IV of the LMRDA. As discussed above, the only privately enforceable provision in Title IV is the provision of § 481(c), which deals with reasonable requests to mail campaign literature; other provisions of Title IV must be enforced by the Secretary of Labor. See Molina, 762 F.2d at 167. Thus, if the Local were correct in its insistence that McCafferty's employer list claim falls within the exclusive purview of Title IV, the district court should not have addressed the merits of McCafferty's request for access to the employer list.
20
In support of its argument, the Local invokes Calhoon v. Harvey, 379 U.S. 134 (1964), and its progeny. In Calhoon, union members brought a lawsuit, ostensibly under Title I, challenging their union's restrictive policies regulating eligibility for union office. See id. at 136. The union by-laws at issue in Calhoon prohibited a member from nominating anyone but him or herself for union office, and the union's national constitution required, inter alia, membership in the national union for five years to be eligible for union office. See id. The Supreme Court refused to recognize a Title I action in Calhoon because "Title IV, not Title I, sets standards for eligibility and qualifications of candidates and officials and provides its own separate and different administrative and judicial procedure for challenging those standards." Id. at 138. The Court emphasized that the complaining union members had "not been discriminated against in any way and ha[d] been denied no privilege or right to vote or nominate which the union has granted to others." Id. at 139 (emphasis added); see also Molina, 762 F.2d at 168-69 (holding that because plaintiffs challenged an evenly applied rule as having been "activated for an improper purpose" their complaint "[went] to the overall fairness of the election voting process - the domain of Title IV - rather than to an individual's unequal treatment" which would be actionable under Title I). The Local insists that McCafferty, like the plaintiffs in Calhoon and Molina, complains about an evenly applied rule which does not discriminate against any union member.
21
The Local misapprehends the nature of McCafferty's Title I claim, aptly perceived by the court as a claim relating to the conditions of access to the employer list. The Local conceded at the preliminary injunction hearing that incumbent union officials had unlimited access to the employer list. Union members like McCafferty, intent on running for office and perhaps challenging incumbents, could view that list only by appointment and could not copy it. Given the Local's acknowledgment of unlimited incumbent access to the list, the limited access/no-copy rule was tantamount to a rule that incumbents may possess the employer list but other union members may not. The discriminatory effect of that rule on union members seeking nomination for union office is palpable (see note 1, above), and is susceptible to a Title I challenge.
22
The Local also argues the inapplicability of Title I to McCafferty's claim based on McCafferty's efforts to secure a nomination for union office and hence participate in a union election. According to the Local, the court ignored "long-standing principles that Title I does not protect the right of candidates or prospective candidates to seek nomination and election."
23
The Local has too limited a view of Title I. Although Title IV focuses on union elections, "Title I of the LMRDA was specifically designed to protect the union member's right to seek higher office in the union." Hall v. Cole, 412 U.S. 14 (1973). The rights of union members are not protected exclusively by Title I or by Title IV. As the Supreme Court has recognized, Title IV "protects many of the same rights as does Title I." Crowley, 467 U.S. at 539. While Title IV may be the only remedy for rights protected by both Title I and Title IV once an election is completed or underway, "the full panoply of Title I rights is available to individual union members 'prior to the conduct' of a union election." Id. at 541. Therefore, if a Local denies equal rights to its members during the nomination process, the Local's conduct may be challenged in court by members of the union pursuant to Title I. McCafferty posed such a challenge, and his claim is cognizable under Title I.
24
In its final challenge to McCafferty's Title I claim, the Local argues that the court wrongly presumed the presence of discrimination from the Local's concession that incumbent officers have unequal access to the employer lists and that Title I requires evidence that incumbents had in fact used their unequal access to their advantage as candidates. See Marshall v. Provision House Workers Union, Local No. 274, 623 F.2d 1322, 1326 (9th Cir. 1980) (finding that "unequal access alone does not warrant a finding of 'discrimination'"); cf. Reich v. Local 396, Int'l Bhd. of Teamsters, 97 F.3d 1269, 1276 (9th Cir. 1996) (recognizing discrimination in challengers' limited access to employer lists where the incumbents exploited their advantage by campaigning at job sites with which they were familiar because of their activities as incumbent union officials). This argument of the Local borders on the frivolous. Its agreement at the preliminary injunction hearing to grant McCafferty substantially the relief he sought with respect to the employer list (posting the list and allowing it to be copied) obviated the need for evidence of actual discrimination on this Title I claim. Having conceded defeat on this claim before the district court, the Local cannot assert error on the basis of insufficient evidence.
25
Given the court's correct determination that McCafferty's employer list claim was cognizable under Title I, we review for abuse of discretion the district court's award of attorney's fees for that claim. See Local 258, Service Employees Int'l Union v. Nonotuck Resource Assocs., Inc., 64 F.3d 735, 737 (1995). As already noted, the Supreme Court has sanctioned the award of attorney's fees to successful litigants under Title I of the LMRDA, reasoning that union members who prevail on Title I claims "confer[] substantial benefits" on their fellow union members. Hall, 412 U.S. at 5. Local 254 dismisses the relief won by McCafferty as too insubstantial for the court to "intuitively conclude that a common 'substantial benefit' was achieved for the members of Local 254," and argues further that there is no evidence in the record "that the failure of Local 254 to disseminate a list of Local 254 employers has ever impeded any member's right to seek his/her nomination for Union office."
26
The Local insists on evidence of a "substantial benefit" that is not required. In the seminal case of Hall v. Cole, the Supreme Court affirmed the award of attorney's fees because "by vindicating his own right of free speech guaranteed by . . . Title I of the LMRDA, [the plaintiff] necessarily rendered a substantial service to his union as an institution and to all of its members." Hall, 412 U.S. at 8. The district court concluded that McCafferty's litigation conferred a similar benefit: "McCafferty unquestionably procured access to employer and bargaining unit information that far exceeded that which the union had previously offered to provide." This access advanced the equal rights of union members to pursue union office.5 See id. at 8 ("[T]o the extent that [Title I] lawsuits contribute to the preservation of union democracy, they frequently prove beneficial 'not only in the immediate impact of the results achieved but in their implications for the future conduct of the union's affairs.") (quoting Yablonski v. United Mine Workers of America, 466 F.2d 424, 431 (D.C. Cir. 1972)).
C. The Mailing Labels
27
The district court's award of attorney's fees on the Title IV claim cannot be sustained. As a legal matter, the district court was incorrect in stating that McCafferty had "a clearly established right to have the union provide him with mailing labels containing the names and addresses of voting union members." Title IV of the LMRDA imposes on unions the "statutory duty to distribute campaign literature to their membership in response to the reasonable request of any candidate for union office." Brown, 498 U.S. at 467 (construing 29 U.S.C. § 481(c)). Although the court cited language in the Brown opinion recounting the candidate's request "that the Union provide him with mailing labels containing the names and addresses of voting Union members to be given to a mailing service so that he could arrange, at his own expense, for a timely mailing" of campaign materials, id. at 469, the Supreme Court affirmed a preliminary injunction that differed from the request of the plaintiff in Brown by directing the union "to deliver the names and addresses of the Union members to a mailing service acceptable to the parties." Id. (emphasis added).
28
Moreover, the parties in Brown were concerned with the timing of campaign mailings and whether the union could postpone compliance with an otherwise reasonable mailing request merely because it conflicted with a union rule that authorized mailings only after nominations had been made. See id. at 468. In holding that the union's rule was inconsistent with the union's statutory obligation to comply with all "reasonable" requests for mailings, id. at 478, the Supreme Court focused on the timing of mailings of campaign literature rather than the party who would receive a member list as a prelude to a mailing. Thus, the Brown Court had no occasion to comment on the significant difference between the union member's initial request to have mailing labels provided to him personally (to turn over to a mailing service) and the district court's order that the union provide the mailing labels directly to a mailing service acceptable to the parties. The distinction is important because "[t]he legislative history of the LMRDA demonstrates a congressional intent that the use of membership lists be severely limited and that such lists be kept out of the hands of partisans in union campaigns to avoid coercion of members." Marshall, 623 F.2d at 1326; see also Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 at 1240 (1959 ed.) (Senator McClellan) (recognizing that there was "apprehension that a person might become a candidate and then use the [membership] list for improper purposes" and explaining that the LMRDA "would simply permit [the candidate] to send his campaign material to the union and have the union mail it out").
29
Brown clearly does not stand for the proposition that candidates for union office are entitled to mailing lists.6 Indeed, such a reading would render another part of § 481(c) superfluous. Section 481(c) gives each candidate for union office the right to inspect a membership list containing names and last known addresses of all members "once within 30 days prior to an election." 29 U.S.C. § 481(c); see also 29 C.F.R. § 452.71 ("The right of inspection does not include the right to copy the list but does include the right to compare it with a personal list of members."). There would be no reason to guarantee candidates access to the list "once within 30 days prior to an election" if candidates were entitled to the list as a matter of right.
30
Factually, the history of the mailing label claim is also markedly different from McCafferty's employer list claim. In his initial correspondence with the Local's recording secretary, McCafferty did not inquire about mailing labels and he did not request that the Local undertake a mailing on his behalf. Later, McCafferty requested that the Local provide him with a set of mailing labels of the Local membership to be turned over to a mailing service, and he continued to press this claim in his request for injunctive relief. In response, the Local at all times acknowledged an obligation to undertake a mailing of campaign literature on McCafferty's behalf (and at his expense), but it refused to turn over the mailing labels to McCafferty. In fact, even before McCafferty had requested mailing labels, in response to McCafferty's first letter, the Local had provided McCafferty with a copy of section 481(c) of the LMRDA which codifies the Local's obligation to undertake mailings at the candidate's expense. Later, both in its February 3 letter and in its motion to dismiss McCafferty's complaint, the Local acknowledged this statutory duty and consistently represented that it intended to comply with this obligation. With respect to McCafferty's Title IV claim, the lawsuit had no effect on the union's behavior or obligations. The court therefore erred in designating McCafferty as a "prevailing party" on this claim.7
31
For these reasons we must vacate the court's award to McCafferty of attorney's fees which erroneously included fees for his Title IV claim.
III.
32
McCafferty sought and received from the district court attorney's fees for the legal work required to establish his right to attorney's fees in the underlying action. The principle is well established that "[t]he fee application is a necessary part of the award of attorney's fees. If the original award is warranted . . . a reasonable amount should be granted for time spent in applying for the award." Donovan v. CSEA, Local Union 100, 784 F.2d 98, 106 (2d Cir. 1989). This reasoning applies equally to attorney's fees on appeal. See Kinney v. International Bhd. Of Elec. Workers, 939 F.2d 690, 695 (9th Cir. 1991); Local 117, Int'l Ass'n of Heat and Frost Insulators and Asbestos Workers v. Young, 775 F.2d 870, 873 (7th Cir. 1986); see also Hall v. Cole, 376 F. Supp. 460 (E.D.N.Y. 1974) (awarding appellate fees on remand in seminal LMRDA attorney's fees case). To proscribe attorney's fees for appellate fee litigation might lead to frivolous fee litigation by union officials in hopes of frustrating the vindication of members' rights and chilling future challenges. See Young, 775 F.2d at 873 ("If disgruntled union members, as prevailing plaintiffs, were forced to incur costs for unsuccessful, fruitless Union appeals, this would have a chilling effect on union members' ability to afford challenging the union leadership" such that "the purpose of the LMRDA would be frustrated.").
33
Because our decision requires the district court to re-calculate the prior fee award, we remand to the district court for a determination of reasonable attorney's fees for the appellate litigation as well. See 1st Cir. R. 39.2 (directing applications for attorney's fees in connection with appeals to be filed with the clerk of the court of appeals "except in those circumstances where the court of appeals has ordered that the award of fees and other expenses be remanded to the district court for a determination").
IV.
34
For the reasons set forth above, the attorney's fee award is Vacated and the matter is Remanded to the district court for a new determination of attorney's fees consistent with this decision.
Notes:
1
Local 254's nomination process required candidates to secure the signature of at least 100 union members, no more than 40 of which could come from any one bargaining unit. Therefore, the Local's nomination process made familiarity with multiple bargaining units a necessity for any member seeking union office.
2
The Local states that "the newspaper identifies, on the back page alone, thirty-six separate bargaining units." The Local does not specify, and the record does not reveal, whether the newspaper contained the addresses of these bargaining units. McCafferty asserts that the Local represents between 180 and 200 separate bargaining units, and this assertion is not challenged by the Local. Obviously, a list of thirty-six bargaining units (with or without addresses) in the union newspaper is not equal to a list of all bargaining units and locations.
3
The district court made no finding of responsibility for this errant mailing and such a finding is not necessary to our disposition of this appeal.
4
Local 254 argued that McCafferty was not entitled to a preliminary injunction because he had never asked in his complaint or otherwise that Local 254 undertake a mailing of campaign literature at his expense or that he be permitted to review a list of the Local 254 employers and locations at the union offices. The Local further noted that the employer list had already been posted at the Union office since February 13.
5
The Local further asserts that McCafferty's access to the list cannot be considered a victory because it was "voluntarily granted" by the Local. This description defies credulity and explains the district court's evident frustration with the Local. Indeed, if Local 254 had "voluntarily granted" McCafferty meaningful access to the list when he requested it, there would have been no court case and no attorney's fees. The attorney's fees at issue are a consequence of the Local's initial refusal to allow the employer list to be copied, even after McCafferty filed a demand for injunctive relief.
6
Until he accepted the Local's assurance to undertake a mailing, McCafferty was requesting that the mailing labels be provided directly to him so that he could provide the labels to a mailing service of his choice. Given these facts, we need not decide whether section 481(c) could be read to require that the mailing labels be provided at the candidate's request to an independent mailing service, assuming that the request is reasonable and assurances of confidentiality can be obtained from the mailing service.
7
The preliminary injunction directed that "Local 254 shall comply promptly with the request of McCafferty or any other bona fide candidate for office to mail campaign literature to Local 254 members so long as such candidate pays in advance the reasonable expense of such mailing." This language simply reflects the statutory directive in § 481(c) that the Local had always acknowledged. Nevertheless, the court apparently viewed McCafferty as a prevailing party on his Title IV claim because of the court's erroneous view that, although McCafferty was entitled to a set of mailing labels for union members, he had accepted as a compromise the Local's assurance (memorialized in the preliminary injunction) that the union would comply with his reasonable requests to undertake mailing(s) at his expense. In recognition of this disparity between what McCafferty sought and what he got in the preliminary injunction, the court decreased McCafferty's fee award on the Title IV claim by ten percent (10%). | 01-03-2023 | 02-07-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/867358/ | 183 P.3d 513 (2008)
EMPLOYERS MUTUAL CASUALTY COMPANY, an Iowa corporation, Plaintiff/Counterdefendant/Appellant,
v.
DGG & CAR, INC., d/b/a Metrol Security Services, an Arizona corporation, Defendant/Counterclaimant/Appellee.
No. CV-07-0280-PR.
Supreme Court of Arizona, En Banc.
February 14, 2008.
*514 Raymond, Greer & Sassaman, P.C. by Randy L. Sassaman, Michael J. Raymond, Phoenix, Attorneys for Employers Mutual Casualty Company.
Feola & Traica, P.C. by Steven Feola, Robert J. Traica and Richard A. Alcorn, Phoenix, Attorneys for DGG & Car, Inc., d/b/a Metrol Security Services.
OPINION
RYAN, Justice.
¶ 1 Businesses sometimes buy employee fidelity or commercial crime insurance policies to protect them against loss from employee theft. In this case we must determine whether a standard form insurance policy treats the loss from a series of thefts by a single employee as one occurrence.
I
A
¶ 2 The facts crucial to our decision are not in dispute. In 2002, DGG & CAR, Inc., doing business as Metrol Security Services ("Metrol"), discovered that John Wallace Brown, an accounting employee, had embezzled more than $500,000 during a five-year period by forging company checks.
¶ 3 Metrol had purchased employee fidelity policies from Employers Mutual Casualty Co. ("EMC") covering two plan years, 2000-2001 and 2001-2002. Under the policies, EMC agreed that it would "pay for loss of, and loss from damage to, Covered Property resulting directly from the Covered Cause of Loss." Covered property included money; the "Covered Cause of Loss" was "Employee dishonesty." The policy defined "Employee dishonesty" as "dishonest acts committed by an `employee' . . . with the manifest intent to" cause loss and obtain a financial benefit.
¶ 4 The EMC policy promised that EMC would "pay . . . for loss that you sustain through acts committed or events occurring at any time and discovered by you during the *515 Policy Period." Such coverage was limited, however, to a set amount per occurrence of loss. Under the policy, "[t]he most [EMC] will pay for loss in any one `occurrence'" was $50,000, with a $250 deductible. In turn, the policy defined "Occurrence" as meaning "all loss caused by, or involving, one or more `employees,' whether the result of a single act or series of acts." This latter provision became the focus of the dispute between Metrol and EMC.
B
¶ 5 Metrol filed a claim with EMC seeking reimbursement for the full amount of the company's loss, arguing that each act of theft was a separate occurrence. EMC countered that Brown's series of thefts constituted a single occurrence and thus Metrol was entitled only to $50,000.
¶ 6 EMC filed a declaratory judgment action seeking a ruling that it owed only $50,000. Metrol counterclaimed, alleging breach of contract, bad faith, and other claims. Cross-motions for summary judgment grappling with the definition of occurrence followed. The superior court concluded that the policy was ambiguous as to whether each act of theft attributable to Brown was itself an occurrence, or whether all acts of theft were a single occurrence. The court concluded Metrol was entitled to recover up to $50,000 for each theft. The parties eventually agreed to a stipulated judgment in favor of Metrol, conditioned on EMC's right to appeal the superior court's resolution of the cross-motions for summary judgment.
¶ 7 In a memorandum decision, the court of appeals reversed. Employers Mut. Cas. Co. v. DGG & CAR, Inc., 1 CA-CV 05-0702, ¶ 1 (Ariz.App. Dec. 14, 2006) (mem.decision). The court reasoned that a series of thefts committed by one employee constituted one occurrence. Id. at ¶ 19. Consequently, the court concluded that Metrol's recovery was subject to the policy limit of $50,000 for the series of thefts. Id. at ¶ 33.
¶ 8 We granted Metrol's petition for review because this case concerns a matter of first impression in Arizona and because the definition of "occurrence" in the policy commonly appears in employee fidelity or commercial crime insurance policies.[1]See ARCAP 23(c)(3). We have jurisdiction under Article 6, Section 5 of the Arizona Constitution and Arizona Revised Statutes, ("A.R.S.") section 12-120.24 (2003).
II
¶ 9 The interpretation of an insurance contract is a question of law we review de novo. Sparks v. Republic Nat'l Life Ins. Co., 132 Ariz. 529, 534, 647 P.2d 1127, 1132 (1982). In interpreting an insurance policy, we apply "a rule of common sense" thus, "when a question of interpretation arises, we are not compelled in every case of apparent ambiguity to blindly follow the interpretation least favorable to the insurer." State Farm Mut. Auto. Ins. Co. v. Wilson, 162 Ariz. 251, 257, 782 P.2d 727, 733 (1989) (stating ambiguity exists when policy "presents conflicting reasonable interpretations"). "[N]either language nor apparent ambiguity alone is dispositive." Id. Rather, even if a policy is apparently ambiguous, a decision to require coverage follows after consideration of "legislative goals, social policy, and examination of the transaction as a whole." Id. at 258, 782 P.2d at 734. Moreover, "[t]he `ambiguity' rule applies only after the court is unable to determine how the language of the policy applies to the specific facts of the case." Preferred Risk Mut. Ins. Co. v. Lewallen, 146 Ariz. 83, 85, 703 P.2d 1232, 1234 (App. 1985). Accordingly, the core question is whether the policy language is, in fact, ambiguous under the facts of this case.
A
¶ 10 The EMC policy treats "all loss" caused by or involving an employee, resulting from a "series of acts," as a single occurrence. John Brown's embezzlement, although including a number of thefts, was a "series of acts," each one following the other. *516 The policy plainly considers the loss resulting from the embezzlement of a single employee an occurrence, with an attendant $50,000 policy limit. The majority of courts in interpreting similar policy language in corresponding factual situations have so concluded. E.g., Glaser v. Hartford Cas. Ins. Co., 364 F.Supp.2d 529, 535-37 (D.Md.2005) (holding, under identical definition, that a single occurrence arose when an employee committed a series of dishonest acts, despite the employee's use of different means to defraud at different times); Wausau Bus. Ins. Co. v. U.S. Motels Mgmt., Inc., 341 F.Supp.2d 1180, 1183-84 (D.Colo.2004) (rejecting company's attempt to distinguish single employee's various embezzlements because occurrence is determined by cause and the cause of all loss was the employee's dishonesty); Bethany Christian Church v. Preferred Risk Mut. Ins. Co., 942 F.Supp. 330, 333-35 (S.D.Tex.1996) (holding policy language identical to that in EMC's policy made all defalcations a single occurrence); Diamond Transp. Sys., Inc. v. Travelers Indem. Co., 817 F.Supp. 710, 712 (N.D.Ill.1993) (holding loss over several years a single occurrence under same language); Reliance Ins. Co. v. Treasure Coast Travel Agency, Inc., 660 So.2d 1136, 1137 (Fla.Dist.Ct.App. 1995) (holding, based on definition identical to that of the EMC policy, that "although this employee's embezzlements occurred over a four year period, they constitute a single occurrence"); Jefferson Parish Clerk of the Court v. Fid. & Deposit Co., 673 So.2d 1238, 1245 (La.Ct.App.1996) ("This language is inclusive of any scheme to cause loss to the insured, and therefore we agree with the trial court that only one occurrence of employee dishonesty can be found under this definition."); see also Bus. Interiors v. Aetna Cas. & Sur. Co., 751 F.2d 361, 362-63 & n. 1 (10th Cir.1984) ("[T]he cause of Business Interiors' loss was the continued dishonesty of one employee. . . . [T]he employee's fraudulent acts constituted a single loss."). Metrol argues that these cases are distinguishable, yet in each case, under policy language identical or similar to EMC's, a court rejected the contention that dishonest acts of a single employee against the company can be parsed as Metrol contends.
B
¶ 11 Metrol nonetheless maintains that the policy is ambiguous. For example, it argues that the phrase "all loss" in the definition of occurrence is unclear because it uses the word "loss" in the singular. To clearly encompass the entire loss attributable to Brown, Metrol claims that the policy needed to refer to losses. But using the singular "loss" does not mean that the phrase "all loss" somehow can be read as "each loss."
¶ 12 Metrol makes a second, equally unpersuasive, argument to suggest the word loss is ambiguous. It argues that any time the term "loss" is used in employee fidelity or commercial crime policies the term refers to each individual theft in a series of thefts. See Lincoln Technical Inst. v. Fed. Ins. Co., 927 F.Supp. 376, 378-79 (D.Ariz.1994) (stating there was a "loss sustained" "each time" an employee stole money). Metrol argues that to treat "all loss" attributable to one employee as one occurrence is inconsistent with the district court's opinion in Lincoln Technical.
¶ 13 For three reasons, this argument does not help Metrol. First, in their effort to secure coverage for loss that occurred before an increase in the applicable policy limits took effect, the plaintiffs in Lincoln Technical argued that the term "loss sustained" in a commercial crime policy was ambiguous. Id. at 378. Thus, the critical issue was when the loss was "sustained." Id. at 378-79. The issue here is the construction of the defined term "occurrence."
¶ 14 Second, even assuming that a "loss" occurred each time Brown embezzled from Metrol, the policy here expressly groups "all loss" attributable to an employee's act or series of acts into a single "occurrence."
¶ 15 Third, Metrol's alternate reading of the definition of "occurrence" is unpersuasive. Metrol argues that the policy definition of "[o]ccurrence" "all loss caused by, or involving, one or more `employees,' whether the result of a single act or series of acts," should be interpreted only as preventing an insured business from claiming that the number of occurrences is determined by the number *517 of employees involved in a single theft or the number of acts leading up to a single theft. But because the policy only covers "loss," not acts, the number of employees or acts involved is irrelevant in determining the amount of the "loss." See Wilson, 162 Ariz. at 258, 782 P.2d at 734.
C
¶ 16 Metrol next asserts that we should reject the plain meaning of the phrase "all loss" in the definition of occurrence because it would treat all dishonest acts of employees resulting in multiple instances of loss as a single occurrence. Metrol argues that because all covered losses necessarily result from either an act or a series of acts by employees, a literal reading of the policy would limit coverage to a total of $50,000 even when the thefts were unrelated. Metrol complains that such an interpretation would "nullif[y]" coverage. But this case does not present us with a situation involving unrelated thefts by multiple employees. Because the plain language of the policy covers the situation in this case, we need not consider whether the policy is ambiguous as applied to other circumstances. See Preferred Risk Mut. Co., 146 Ariz. at 85, 703 P.2d at 1234. Nor can we conclude that a policy that provides up to $50,000 in coverage for an employee's series of thefts is illusory.
¶ 17 Citing A.B.S. Clothing Collection, Inc. v. Home Insurance Co., 34 Cal.App.4th 1470, 41 Cal.Rptr.2d 166, 174 (1995) (finding the same policy language as EMC's ambiguous), and Karen Kane, Inc. v. Reliance Insurance Co., 202 F.3d 1180, 1185 (9th Cir.2000) (relying on A.B.S. Clothing), Metrol counters that the policy itself suggests that multiple occurrences may be covered in a plan year. The policy states, "[t]he most we will pay for loss in any one `occurrence' is the applicable Limit of Insurance shown in the Declarations," suggesting the possibility of more than one occurrence. (Emphasis added.) Yet the policy language defines "occurrence" to include "all loss" attributable to any employee or employees. Because these two provisions conflict, Metrol argues, a policyholder cannot determine when "any one" occurrence ends and another begins. Although there may be more than one "occurrence" per year under the policy, it does not follow that losses resulting from a single employee's embezzlement scheme are themselves separate occurrences. See Wausau, 341 F.Supp.2d at 1183-84 ("The cause of [the insured's] loss was the dishonesty of one employee. Although the employee appears to have been particularly creative in finding ways to bilk [the insured], her intent throughout undoubtedly was the same: to steal [the insured's] money;" therefore the employee's "embezzlement scheme" constituted one occurrence.) (citations omitted); see also Glaser, 364 F.Supp.2d at 529.[2]
D
¶ 18 Metrol also contends that the phrase "series of acts" in the definition of occurrence is ambiguous. It argues that the phrase could apply to a series of thefts or a series of acts leading up to a theft. See Karen Kane, 202 F.3d at 1187 (suggesting same). The policy, however, defines occurrence in terms of "all loss" that results from "a single act" or "series of acts." Accordingly, only acts from which loss results the acts of theft are considered part of the occurrence. Further, even if preparatory acts are part of a "series of acts," the language is nevertheless broad enough to encompass not only a series of preparatory acts leading up to a theft, but also each series of preparatory acts leading up to each theft. There is no ambiguity.
E
¶ 19 Metrol asserts that because certain courts have found this policy language ambiguous it must be subject to more than one reasonable interpretation. Varying judicial interpretations, however, do not automatically *518 render an insurance policy ambiguous. Wilson, 162 Ariz. at 257-58, 782 P.2d at 733-34. Further, the cases Metrol relies upon A.B.S. Clothing, Karen Kane, and Auto Lenders Acceptance Corp. v. Gentilini Ford, Inc., 181 N.J. 245, 854 A.2d 378, 397 (2004) are not persuasive in light of the plain language in EMC's policy.
¶ 20 A.B.S. Clothing, for example, addressed similar policy language in a distinct scenario. There, the issue was whether an insured business was entitled to a policy-limit recovery each year for an employee's embezzlements when the insured business maintained a policy with the insurance company for a number of years. 41 Cal.Rptr.2d at 167-68. This issue is distinct from whether an insured business is entitled to multiple recoveries in a single plan year for the acts of one employee discovered that year.
¶ 21 Karen Kane, which cited and relied upon A.B.S. Clothing, is similarly distinguishable. Karen Kane, 202 F.3d at 1185-88. Karen Kane said nothing about whether the policy contemplated multiple recoveries for multiple acts discovered in a single plan year. See id. at 1187. To the contrary, the court stated that "[i]f `occurrence' is construed as limited by policy period, then [the employee's] approximately 150 individual acts of theft, spanning over three years, constitute three separate `series of acts,' one for each of the three policy periods and recoverable within each period as such." Id. (emphasis added). Moreover, to the extent the Ninth Circuit panel relied on A.B.S. Clothing, it did so because, as a federal court sitting in diversity, it was bound to follow what it perceived to be California law. Id. at 1183.
¶ 22 In addition, Metrol argued before this Court that it is entitled to recover for close to 300 "acts," but it has not argued that it is entitled to recover for two "series of acts" in two plan years.
¶ 23 Finally, the New Jersey Supreme Court held that, under at least some circumstances, language like that employed by EMC may be subject to a different construction. In Gentilini Ford, the court found multiple occurrences, allowing for multiple recoveries, when an employee used fraudulent credit applications to sell individual cars to individual car buyers. 854 A.2d at 397. The court explained that with each sale the employee "caused a separate, direct loss of property to [the dealer] by inducing it to part with an automobile in exchange for a faulty installment sales contract." Id. "In these circumstances," the court continued, "in which each purchaser and the terms of each sale are unique, the similarity of the acts do not transform them into one continuous event subject to a single recovery under the policy." Id. at 398. The court expressly noted, however, that the case before it did not involve an embezzlement scheme. Id. Moreover, to reach its conclusion, the court specifically declined to "adhere to the text's literal limitation because to do so here would nearly vitiate the coverage that both parties clearly contemplated." Id. at 397. Metrol has never suggested that it reasonably expected coverage broader than the literal language of the policy.[3]
III
¶ 24 When "the provisions of the contract are plain and unambiguous upon their face, they must be applied as written, and the court will not pervert or do violence to the language used, or expand it beyond its plain and ordinary meaning or add something to the contract which the parties have not put there." D.M.A.F.B. Fed. Credit Union v. Employers Mut. Liab. Ins. Co., 96 Ariz. 399, 403, 396 P.2d 20, 23 (1964); see also Pawelczyk v. Allied Life Ins. Co., 120 Ariz. 48, 52, 583 P.2d 1368, 1372 (App.1978) ("Courts must give effect to agreements as they are written, however, and ambiguities will not be found or created where they do not exist in order to avoid a harsh result.").
¶ 25 In any event, Metrol has not suggested any public policy that supports its construction of the contract. Under Metrol's interpretation, a dishonest employee would *519 dictate the terms of the employer's recovery by the amount he chose to steal each time during the policy period. In fact, Metrol's interpretation actually hurts insureds who suffer small often less detectable losses during the policy period because a number of small thefts each less than the policy deductible would be treated separately, preventing an insured from recovering at all in such cases. See Am. Commerce Ins. Brokers v. Minn. Mut. Fire and Cas. Co., 551 N.W.2d 224, 229-30 (Minn.1996) (concluding that an insured's similar interpretation of a comparable policy was "problematic as a matter of public policy"); cf. EOTT Energy Corp. v. Storebrand Int'l Ins. Co., 45 Cal.App.4th 565, 52 Cal.Rptr.2d 894, 900-01 (1996) (holding that "[a]s used in the policy, the term `occurrence' reasonably contemplates that multiple claims could, in at least some circumstances, be treated as a single occurrence or loss. It appears reasonable to us that the term `occurrence' . . . is effectively referring to a loss" and thus not subject to a separate deductible, which, because each theft was less than the deductible would in effect result in no recovery).[4] Accordingly, Metrol's interpretation of the policy would visit harsh results on other subscribers to similar policies.
IV
¶ 26 For the foregoing reasons, we vacate the court of the appeals' decision, reverse the judgment of the superior court and remand for proceedings consistent with this opinion.
CONCURRING: RUTH V. McGREGOR, Chief Justice, REBECCA WHITE BERCH, Vice Chief Justice, ANDREW D. HURWITZ, and W. SCOTT BALES, Justices.
NOTES
[1] See Edward Gallagher, Limit of Liability, in Commercial Crime Policy 451 (Randall I. Marmor & John J. Tomaine, 2d ed.2005).
[2] The court of appeals indicated that "[t]he term `series' implies some sort of relationship between the acts, and not merely the fact that the same person committed them." Employers Mut., 1 CA-CV 05-0702, slip op. at ¶ 31. Because the acts in this case were caused by Brown's dishonesty, we need not decide whether the same policy would treat a series of unrelated acts by the same employee as a single occurrence.
[3] Metrol never argued to this Court that cases addressing the reasonable expectations of consumers subject to standard form contracts apply here. See, e.g., Darner Motor Sales, Inc. v. Universal Underwriters Ins. Co., 140 Ariz. 383, 389-90, 682 P.2d 388, 394-95 (1984) (recognizing the doctrine of reasonable expectations in contract law).
[4] The parties and the appeals court spent time analyzing Arizona Property and Casualty Insurance Guaranty Fund v. Helme, 153 Ariz. 129, 735 P.2d 451 (1987). But Helme involved a policy defining an occurrence as "any incident, act or omission, or series of related incidents, acts or omissions resulting in injury," id. at 134, 735 P.2d at 456, and simply concluded that two separate instances of malpractice by physicians that led to a patient's death were separate occurrences because they were unrelated. This case involves different policy language and a very different issue. | 01-03-2023 | 05-11-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3073452/ | In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-14-00016-CV
DIXON W. HOLMAN, SHARON G. HOLMAN,
WATERMARK TRANSPORT SERVICES, LLC, TRUCK PROVIDERS, LLC,
AND TRUCK PROVIDERS II, LLC, Appellants
V.
COLONIAL PACIFIC LEASING CORPORATION, Appellee
On Appeal from the 153rd District Court
Tarrant County, Texas
Trial Court No. 153-244003-10
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
The appellants, Dixon W. Holman, Sharon G. Holman, Watermark Transport Services,
LLC, Truck Providers, LLC, and Truck Providers II, LLC, have filed a motion to dismiss the
pending appeal in this matter. 1 The appellants represent that the parties have reached a full and
final settlement and that they no longer desire to prosecute this appeal.
We grant the appellants’ motion and dismiss this appeal. See TEX. R. APP. P. 42.1(a)(1).
Bailey C. Moseley
Justice
Date Submitted: May 29, 2014
Date Decided: May 30, 2014
1
Originally appealed to the Second Court of Appeals in Fort Worth, this case was transferred to this Court by the
Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West
2013). We are unaware of any conflict between precedent of the Second Court of Appeals and that of this Court on
any relevant issue. See TEX. R. APP. P. 41.3.
2 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2741187/ | October 9, 2014
JUDGMENT
The Fourteenth Court of Appeals
MISSION PETROLEUM CARRIERS, INC., Appellant
NO. 14-14-00072-CV V.
DAVID KELLEY, Appellee
________________________________
This cause, an appeal from the order denying appellant Mission Petroleum
Carrier’s motion to compel arbitration, signed January 8, 2014, was heard on the
transcript of the record. We have inspected the record and find error in the trial
court’s order. The order denying the motion to compel arbitration is REVERSED,
and we REMAND the cause to the trial court for proceedings in accordance with
the court’s opinion, including ordering the parties to arbitration and staying
proceedings.
We further order that all costs incurred by reason of this appeal be paid by
appellee David Kelley.
We further order this decision certified below for observance. | 01-03-2023 | 10-09-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/3040393/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-3664
___________
Clark Lee Smith, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Mike Kemna; CO I. Knowles; Shanna *
Keeter; Russell Hollowell, * [UNPUBLISHED]
*
Appellees. *
___________
Submitted: May 23, 2006
Filed: May 24, 2006
___________
Before MURPHY, BEAM, and COLLOTON, Circuit Judges.
___________
PER CURIAM.
Missouri inmate Clark Lee Smith appeals the district court’s1 preservice
dismissal of his 42 U.S.C. § 1983 action. Having carefully reviewed the record, we
conclude dismissal of the complaint was proper for the reasons explained by the
district court. Accordingly, we affirm the judgment. See 8th Cir. R. 47A(a).
______________________________
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/599051/ | 984 F.2d 155
UNITED STATES of America, Plaintiff-Appellee,v.Elson STRAHAN, Jr., Defendant-Appellant.
No. 92-5173.
United States Court of Appeals,Sixth Circuit.
Argued Sept. 24, 1992.Decided Jan. 15, 1993.Rehearing Denied Feb. 22, 1993.
John Fowlkes (argued), and Linda Harris (briefed), Asst. U.S. Attys., Office of the U.S. Attorney, Memphis, TN, for plaintiff-appellee.
April R. Ferguson, Asst. Federal Public Defender (argued, briefed), Memphis, TN, for defendant-appellant.
Before BOGGS and SUHRHEINRICH, Circuit Judges, and WELLFORD, Senior Circuit Judge.
BOGGS, Circuit Judge.
1
This is an appeal from a guilty plea on charges of possession of cocaine with intent to distribute and using and carrying a firearm during a drug trafficking offense. Appellant contends that the district court improperly denied his motion to suppress the cocaine and the firearm. For the reasons stated, we affirm on the cocaine count, but reverse the denial of the motion to suppress the weapon.
2
* Officer Cecil Wages of the Memphis Police Department received a telephone call on February 22, 1991. The caller related that the defendant, Elson Strahan, recently had been released from jail, was staying in room 510 of the Royal Oaks Motel, and went to the Macon Road Lounge every day at about 10 a.m. and sold cocaine. The caller also stated that the defendant might have a pistol.
3
Wages recognized the voice as that of a frequent supplier of police information. The caller had provided information about the defendant on August 1, 1990. On that date, the caller stated that Strahan was wanted for a crime, possibly murder, and was armed. Based upon this information, Wages investigated Strahan, found that he was wanted for burglary, and then arrested him. Strahan served time in Louisiana for this offense.
4
Based upon the new information supplied by the caller, Wages and Sergeant Huff went to the Royal Oaks Motel. True to the caller's report, the defendant left room 510 shortly after 10 a.m. and began driving toward the Macon Road Lounge. The officers saw the defendant park at the back of the lounge and then hurriedly leave his vehicle. The officers believed that the defendant moved hurriedly because he recognized the police vehicle, a distinctive Ford wagon with blacked-out windows, which the officers had used to arrest Strahan on the prior occasion.
5
Officer Huff jumped out of his car once the defendant moved toward the lounge, and apprehended Strahan outside the doorway of the lounge, approximately thirty feet from defendant's automobile. Officer Wages began patting Strahan down, fearing that he might have a weapon. Wages testified that he had this concern based upon the informant's comments, his prior experience with the defendant, and the defendant's alleged membership in the Banditos motorcycle gang, a group whose members carry weapons.1 Wages then felt a bulge in the defendant's left coat pocket. The officer testified that he thought "it might have been some kind of weapon." Wages therefore reached into the pocket and discovered cocaine, a money clip, and some money. Wages then searched the car and found a gun.
6
The defendant's version of the facts differs. He claims that the officers jumped out of the car, placed him under arrest outside of the lounge, and failed to read him his Miranda rights. Strahan also stated that he did not hurry to the door of the lounge.
7
The defendant filed a motion to suppress both the cocaine and the gun found in the car. The magistrate judge adopted Officer Wages's statement of the facts, and recommended that the suppression motion be denied. After a de novo hearing, the district court entered its order denying the motion to suppress. The defendant then entered into a plea agreement, pursuant to which he preserved his right to appeal the denial of the motion to suppress. The district court sentenced the defendant to twenty-seven months' imprisonment on count one for unlawfully, knowingly, and intentionally possessing approximately five grams of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Strahan received a consecutive sentence of sixty months on count two for using and carrying a firearm during and in relation to a drug-trafficking offense, in violation of 18 U.S.C. § 924(c). Three years of supervised release are to follow the imprisonment.
8
Defendant now appeals the denial of his motion to suppress both the cocaine found in his pocket and the gun located in the car. We affirm the admittance of the cocaine, but reverse the denial of the motion to suppress the gun.
II
9
As a preliminary matter, defendant argues that both the district judge and the magistrate judge failed to state adequately their reasons for adopting Officer Wages's statement of the events. Strahan relies upon United States v. Cooke, 915 F.2d 250 (6th Cir.1990). In that airport search case, the district court, without explanation, discounted the defendant's statement of the facts. In dicta, we stated that in airport search cases, credibility is crucial. Accordingly, we stated that "it would be helpful if district judges or magistrates conducting suppression hearings would indicate why they are crediting one party over another when the versions of what occurred differ in material detail." Id. at 252.
10
Defendant is mistaken in arguing that Cooke necessitates a remand. The district court, after a de novo hearing, did state its reasons for crediting certain witnesses over others. Moreover, Cooke is merely hortatory in stating that "it would be helpful" if judges explained their credibility determinations. The court does not state that failure to do so mandates remand. Furthermore, the court in Cooke emphasized that its comments only applied to airport search cases. The findings of both the magistrate judge and the district judge were adequate.
III
11
Appellant next argues that the police actions constituted an improper stop and frisk under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). This position is incorrect. Alabama v. White, 496 U.S. 325, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990), governs this case. In White, officers received information from an anonymous caller that White would be delivering cocaine at a specified time and location. The officers followed defendant to this location and conducted a Terry stop. The search uncovered cocaine. The defendant moved to suppress, arguing that the anonymous call did not justify a Terry stop. The court held that the anonymous call, standing alone, did not justify a Terry stop. However, the tip, plus behavior that corroborated the tip, did justify the stop.
12
Similarly, in Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972), the Supreme Court held that an informant's tip may, with some corroboration, provide sufficient evidence for a Terry stop and frisk. Id. at 147, 92 S.Ct. at 1926. In the instant case, the officers had sufficient evidence to support a Terry stop. The officers received accurate information from a reliable source regarding the defendant's location and modus operandi.2 The officers had information from Louisiana that defendant was dangerous, and they also knew the individual from his prior arrest. Based upon this evidence, the officers' behavior was reasonable. A Terry stop was proper.
13
Pursuant to a Terry stop, provided that an officer believes that a suspect may be dangerous, the officer may conduct a limited search for concealed weapons. Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972); W. LaFave, Search and Seizure, § 9.4(c) at 522 (2d ed. 1987). In this case, Officer Wages believed that the defendant might be dangerous based upon the tip, his knowledge of the defendant's past conduct, and information supplied by Louisiana authorities. Therefore, a search for weapons was reasonable.
14
Officer Wages stated that while patting down the defendant, he felt a bulge in the left coat pocket.3 Wages felt into the coat and uncovered cocaine, money, and a money clip. Defendant argues that even if a Terry stop and frisk was permissible, this search exceeded Terry 's scope. As stated in Terry, "A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. Thus it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer...." Terry, 392 U.S. at 25-26, 88 S.Ct. at 1882. Terry allows only an examination for concealed objects and forbids searching for anything other than weapons. Ybarra v. Illinois, 444 U.S. 85, 92-94, 100 S. Ct. 338, 343, 62 L. Ed. 2d 238 (1980).
15
Based upon the officer's knowledge of the defendant and the contours of the bulge, the officer reasonably believed that the bulge could be a weapon. Part of the bulge consisted of a money clip. This clip provided rigidity to the bulge, which made it more likely that the defendant possessed a weapon.4 The officer's concern that the defendant possessed a weapon is further buttressed by the alarming rate of attacks upon law enforcement officers. In 1991, sixty-nine law enforcement officers were killed in the line of duty. United States v. Clipper, 973 F.2d 944, 950 (D.C.Cir.1992). Given the contours of the bulge, and the reasonable apprehension experienced by officers on duty, the officer certainly had a reasonable expectation that the bulge could be some type of weapon. Accordingly, it was proper to reach into the pocket and remove the contents.IV
16
A separate examination is necessary of the propriety of the search of the vehicle. This search led to the discovery of the gun. The defendant contends that this weapon should be suppressed.
17
In Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685 (1969), the Supreme Court held that an officer making a custodial arrest may search the person in custody and the "area within his immediate control." Chimel mandates case-by-case evaluation of what constitutes the "area within [one's] immediate control." The Supreme Court addressed the applicability of Chimel to automobile search cases in New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981). In that case, the Supreme Court held that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." 453 U.S. at 460, 101 S.Ct. at 2864. Belton established a bright-line rule for automobile search cases. W. LaFave, Search and Seizure § 7.1 at 136 (2d ed. 1987). When an occupant of a vehicle is arrested, the police may lawfully search the passenger compartment.
18
In United States v. White, 871 F.2d 41 (6th Cir.1989), this court held that Belton governs when the arrestee is removed from the car prior to the time of the search. White comports with other circuits that have addressed this issue. See, e.g., United States v. Karlin, 852 F.2d 968, 971-72 (7th Cir.1988), cert. denied, 489 U.S. 1021, 109 S. Ct. 1142, 103 L. Ed. 2d 202 (1989); United States v. Cotton, 751 F.2d 1146, 1149 (10th Cir.1985); United States v. McCrady, 774 F.2d 868, 871-72 (8th Cir.1985). White, in following Belton, applies only where the police initiate contact while the defendant is within his automobile, but subsequently remove the arrestee.5 Indeed, Belton clearly limits its application to only those settings where an officer makes a custodial arrest "of the occupant of an automobile...." Belton, 453 U.S. at 460, 101 S. Ct. at 2864. (emphasis added).
19
Because Strahan was approximately thirty feet from his vehicle when arrested, White and Belton are inapplicable. The police did not make an arrest of an occupant of a vehicle. Accordingly, the Chimel test governs. Because the passenger compartment of the vehicle was not within Strahan's "immediate control" at the time of the arrest, the search was not incident to a lawful arrest, and suppression is proper.
20
United States v. Fafowora, 865 F.2d 360 (D.C.Cir.1989), addressed this exact issue. In Fafowora, the officers arrested the defendants while the defendants were walking away from their jeep. The officers then searched the jeep and found drugs. The court held that the vehicle search was improper. The court reasoned that Belton did not apply because the contact with the defendants occurred well outside of the car. The court then concluded that the search was not incident to the arrest. The present case is indistinguishable from Fafowora. Strahan was a good distance away from the automobile when confronted and arrested by the officers. White only governs if the police remove the defendant from the vehicle. Accordingly, suppression of the weapon is required.6
21
For the foregoing reasons, we AFFIRM the district court's denial to suppress the cocaine. We REVERSE the district court's denial of the motion to suppress the weapon, and REMAND for further proceedings.
1
Louisiana authorities told Wages about Strahan's involvement with this gang
2
Defendant argues that this source was not reliable because in 1990 he mistakenly had said that defendant was wanted for murder, not robbery. This variance does not make the source unreliable
3
Wages testified as follows:
Q. Did you know what was in his pocket at that time?
A. No, ma'am.
Q. From the feel could you feel what it was?
A. No, ma'am.
Q. And what did you suspect at this time?
A. I thought it might have been some kind of weapon.
Q. Why did you suspect that?
A. Because motorcycle men sometimes carry weapons in billfolds. They could be in any shape, form or fashion.
Q. Was it based on anything else that you felt--
A. The information from the informant and the prior experience.
4
The present case presents less difficulty than United States v. Anderson, 859 F.2d 1171, 1177 (3rd Cir.1988). In that case, the officer felt a bulge and removed only cash. In spite of the lack of rigidity to the bulge, the court did not suppress the money
5
In Belton, the officer removed the defendant from his vehicle prior to making the search of the vehicle
6
We note that United States of America v. Dobson, No. 91-5978, 1992 WL 276773, 1992 U.S.App. Lexis 25970 (6th Cir. October 7, 1992) (per curiam) deals with a similar issue. We believe that there are distinguishing features between the instant case and Dobson, but in any event, we do not deem Dobson, an unpublished opinion, to be controlling | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/292762/ | 433 F.2d 306
William Addison WALKER, Appellant,v.UNITED STATES of America, Appellee.
No. 25317.
United States Court of Appeals, Fifth Circuit.
Oct. 23, 1970.
John R. Foster, Del Rio, Tex., for appellant.
Ernest Morgan, Seagal V. Wheatley, U.S. Attys., Reese L. Harrison, Jr., Asst. U.S. Atty., San Antonio, for appellee.
Before BELL AND SIMPSON, Circuit Judges, and ROBERTS, District Judge.
SIMPSON, Circuit Judge:
1
Walker was convicted below, after a jury trial, under a two-count indictment. The first count charged Walker with receiving, concealing and facilitating transportation and concealment of marijuana in violation of Title 21, U.S.C., Section 176a. The second count was brought under Title 26 U.S.C., Section 4755(a)(1). It charged that Walker imported marijuana without having registered or paid the tax required by Title 26, U.S.C., Sections 4751-4753, inclusive. The appellant was given a five-year sentence as to the first count and a three-year confinement sentence as to the second count, the sentences to run concurrently. This appeal followed.
2
Walker and three other persons, not involved in this appeal, entered the United States from Mexico in an automobile. At the Border Customs Station at the International Bridge in Eagle Pass, Texas, Walker was asked his citizenship and if he had anything to declare at Customs. The appellant stated that he had nothing to declare. A subsequent customs inspection revealed twelve plastic bags of marijuana weighing a total of ten pounds, eleven ounces.
3
Appellant took the stand and was quite candid about his marijuana activities. He admitted purchasing the marijuana in Mexico and importing it into the United States. Walker's testimony on direct examination consisted of a fourteen page monologue extolling the virtues of marijuana and denouncing the federal laws against its importation. He testified that his intent in crossing the bridge with the marijuana was to test such laws.
4
On appeal, Walker raises the following issues: lack of effective counsel, insufficiency of the evidence, and the alleged unconstitutionality of Title 26, U.S.C., Sec. 4755(a)(1) and Title 21 U.S.C., Sec. 176a.1
5
The main thrust of the appellant's attack on his trial counsel's effectiveness is directed at counsel's failure to object during the United States Attorney's reference in closing argument to 'detrimental narcotics' and 'hippie people'. Often, the decision as to whether or not to object to particular statements made in closing argument is a matter of tactics. Since an objection may tend to emphasize a particular remark to an otherwise oblivious jury, the effect of objection may be more prejudicial than the original remarks of opposing counsel. Williams v. Beto, 5 Cir. 1965, 354 F.2d 698, 705, 706. We find that lack of effective counsel is not shown.
6
The appellant argues that the evidence was insufficient to support a finding of concealment or a finding that any marijuana was imported into the United States. As to the concealment contention, the evidence is abundant. A customs inspector testified that Walker, when asked if he had anything to declare, answered 'Nothing'. Walker's own testimony revealed that the marijuana was wrapped in his clothing and packed in a suitcase.
7
The importation question is likewise without merit. Appellant suggests that he was wrongfully convicted because the customs inspection prevented completion of the importation. A similar theory was rejected in Walden v. United States, 5 Cir. 1969, 417 F.2d 698.
8
The appellant contends that the jury was erroneously instructed that it was entitled to presume importation from the fact Walker had possession of the marijuana. The trial judge paraphrased Title 21 U.S.C., Sec. 176a, which states in pertinent part:
9
'Whenever on trial for a violation of this subsection, the defendant is shown to have or to have had the marijuana in his possession, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury.'
10
The appellant correctly contends that the above provision is unconstitutional in marijuana cases. Leary v. United States, supra, footnote 1. While such an instruction may be technical error in light of Leary, we find that in the instant case it was harmless. Harrington v. California, 1969,395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284; Chapman v. California, 1967,386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. Where the evidence clearly demonstrates that the defendant transported marijuana from Mexico to the United States and no reliance was placed upon the presumption, there is no prejudice. Waldon v. United States, supra. Accordingly we affirm the judgment of conviction rendered under Title 21, U.S.C., Sec. 176a.
11
Since concurrent sentences were imposed, this Court in its discretion declines to pass on the validity of the judgment of conviction under Title 26 U.S.C., Section 4755(a)(1). Benton v. Maryland, 1969, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707.
The judgment is
12
Affirmed.
1
No retroactivity issue is present because appellant's direct appeal was pending prior to the disposition of Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57. See United States v. Scardino, 5 Cir. 1969, 414 F.2d 925 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1554513/ | 26 So.3d 517 (2008)
INIGO VARGUEZ FELIX
v.
STATE.
No. CR-07-1382.
Court of Criminal Appeals of Alabama.
June 13, 2008.
Decision of the Alabama Court of Criminal Appeals Without Published Opinion Dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/286792/ | 416 F.2d 1149
Robert Allen FRENCH, Appellant,v.UNITED STATES of America, Appellee.
No. 22505.
United States Court of Appeals Ninth Circuit.
Oct. 11, 1968, As Amended on Denial of Rehearing Oct. 15, 1969.
Robert Allen French, in pro. per.
Wm. Matthew Byrne, Jr., U.S. Atty., Robert L. Brosio, Asst. U.S. Atty., Crim.Div., George G. Rayborn, Asst. U.S. Atty., Los Angeles, Cal., for appellee.
Before BARNES and CARTER, Circuit Judges, and SWEIGERT,* District judge.
JAMES M. CARTER, Circuit Judge.
1
This is an appeal from denial by the district court after an evidentiary hearing, of relief under 28 U.S.C. 2255.
The appeal presents:
2
(1) Evidentiary questions and
3
(2) The question whether failure to answer requests for admissions automatically constitutes an admission which is thereafter completely binding on the defaulting party, or whether the district court may in its discretion, allow additional time to answer the requests for admissions.
THE FACTS
4
The appellant on July 27, 1964, entered pleas of guilty to three counts of a nine count indictment, charging appellant with nine separate bank robberies in violation of 18 U.S.C. 2113(a). Following plea, appellant was sentenced to imprisonment for 17 years and 300 days on each of the three counts, to run concurrently.
5
Appellant moved to vacate his sentence, pursuant to 28 U.S.C. 2255. Following the procedure suggested in 'Pre-Trial Suggestions for 2255 Cases, etc.,' 32 Fed. Rules Dec., 393-408, counsel was appointed for appellant in the district court, pretrial conferences held and a stipulation and order filed listing the issues to be tried, which were as follows:
6
(1) Were the pleas of guilty of petitioner in the criminal proceeding voluntarily made and free from coercion and/or wrongful inducement?
7
a. Was petitioner's right to counsel violated by the interrogation conducted in the Police Administration Building on either July 1 or July 3, 1964, said date being in dispute, and were his pleas of guilty influenced or induced thereby?
8
b. Were any promises made to petitioner by Special Agent Robert H. Morneau, Jr., which influenced or induced petitioner to plead guilty?
9
c. Was there a threat made to petitioner at the time of his pleas of guilty by Assistant United States Attorney Michael Balaban, such as to have coerced petitioner to enter pleas of guilty?
10
d. Was petitioner's right to remain silent violated during interrogation by law enforcement officers while petitioner was in custody? If petitioner's right to remain silent was violated during such interrogation, were the pleas of guilty induced or influenced thereby?
11
(2) Is the sentence based upon a presentence report which is so erroneous as to render the sentence invalid as being a lack of due process of law?
12
(3) Was petitioner mentally competent, i.e., able to understand the nature of the proceedings against him and to cooperate with counsel in his defense at all stages of the criminal proceeding?
13
(4) Was petitioner adequately represented by counsel at all stages of the criminal proceeding?
14
(5) Were petitioner's pleas of guilty induced by a combination of inducements, or of inducements and coercion, or of inducements, coercion and inability to understand the proceedings against him and to cooperate and assist his counsel, or of all of these and the inadequacy of counsel?
15
The pretrial stipulation and order further provided that the court would rule on all issues that might affect the validity of the criminal judgment and sentence; that petitioner would have the burden of proof on all of said issues; that in the absence of proof on a particular issue, the district court would find that petitioner had not sustained his burden of proof, and find against the petitioner on the merits of such issue; and that as to issues on which proof was offered, the court would decide them on the merits. The pretrial order further recited, 'The purpose of this order is to prevent piece-meal and repetitious petitions for relief, to hear and consider all matters that might affect the validity of the criminal judgment and sentence, and to as far as possible, determine all such issues in one hearing.'
16
Following a hearing, the court made written findings and an order denying the petitioner relief, with a provision that the order should serve as findings of fact and conclusions of law pursuant to Rule 52, F.R.Civ.P.
FAILURE TO ANSWER REQUESTS FOR ADMISSIONS
17
The petition for relief under section 2255, 28 U.S.C. was filed on April 1, 1966. The appellant was removed from the place of his incarceration to the Central District of California at Los Angeles; the district court judge appointed counsel to represent him and held a number of pretrial conferences with the appellant and his counsel present. These conferences were held in an attempt to classify and list all the possible grounds which might serve as a basis for relief so that they might all be heard and determined in the same action. These pretrial conferences were held on April 20 and August 16, 1966, and January 11 and February 2, 1967.
18
On March 28, 1967, appellant, acting pro per and without his counsel's name appearing on the document, served fifty-five requests for admissions under Federal Rule of Civil Procedure 36. The United States failed to answer within the time specified by the appellant in his request.1
19
On May 17, 1967, appellant filed in pro per a motion for summary judgment, which included notice to the United States as to the date the matter would be heard by the district court. The motion urged that since the United States had failed to respond to the request for admissions within the time specified in the request, that all the matters contained therein were deemed automatically admitted by operation of Rule 36, F.R.C.P., and that on the basis of these admitted facts summary judgment should be granted for the appellant.
20
The court denied the appellant's motion with the entry of a minute order in the record dated May 18, 1967. Appellant's attorney was present. The court went over the requests for admissions, relieved the government of its default, granted it additional time to answer and sustained objections to various of the requests. The court's rulings were included in the pretrial stipulation and order.2
21
The reporter's transcript shows that appellant's counsel on May 23, 1967, when the pretrial order and stipulation was settled, signed and filed, conceded that the court had made such rulings. Although the rulings were set forth in the pretrial order and stipulation and 'stipulated to and approved' by the signature of both appellant and his attorney, the appellant continuously preserved his objection to the court's rulings.
22
It was not error for the trial court to relieve the United States of its default in failing to answer the request for admissions. A trial judge has discretion to permit a late response to a request for admissions made pursuant to Rule 36 F.R.Civ.P., and thus relieve a party of apparent default. Moosman v. Joseph P. Blitz, Inc., 358 F.2d 686 (2 Cir. 1966), is direct authority for the proposition.
23
'Under compelling circumstances the District Court may allow untimely replies to avoid the admission. * * * Since the purpose of Rule 36 is to expedite trial by removing uncontested issues and no delay was caused here, there is no sufficient reason to force the District Court to grant summary judgment here where no prejudice is shown.' (Id. at 688).
24
Accord: Sher v. DeHaven, 91 U.S.App.D.C. 257, 199 F.2d 777, 36 A.L.R.2d 937 (1952), cert. denied 345 U.S. 936, 73 S.Ct. 797, 97 L.Ed. 1363 (1953); Bowers v. E. J. Rose Mfg. Co., 149 F.2d 612 (9 Cir. 1945), cert. denied sub nom. Fischer v. Bowers, 326 U.S. 753, 66 S.Ct. 91, 90 L.Ed. 451 (1945); Countee v. United States, 112 F.2d 447 (7 Cir. 1940); Kelly v. Harris, 158 F.Supp. 243 (D.Mont.1958); Jackson v. Kotzebue Oil Sales, 17 F.R.D. 204, 15 Alaska 494 (1955); Hopsdal v. Loewenstein, 7 F.R.D. 263 (N.D.Ill.1945).
25
Appellant claims he was prejudiced. He contends first that he had been told there would be a two weeks interval between the pretrial and the 2255 hearing itself. The record shows that on February 2, 1967, pretrial was set for April 13, 1967, and the hearing date set for April 25, 1967. Appellant's counsel then requested and obtained additional time for discovery. On April 7, appellant's counsel again obtained an extension of time for pretrial and discovery, and the court at that time fixed May 16, 1967, for the pretrial and May 23, 1967 for the hearing date. Appellant apparently knew of this new date, since when he filed his notice of motion for summary judgment, on May 17, 1967, he noticed it for May 22, 1967, a day before the hearing was to commence. There is nothing in the record to indicate there were any further requests for extension of the date of the actual hearing or any motion for a continuance.
26
Secondly, appellant claims he was prejudiced by the court's ruling, because the government on May 23, 1967, the date of hearing, had eight prospective witnesses in court and used only three; and that the witnesses summoned were to rebut the matters covered by his requests for admissions.
27
The trial court afforded appellant an opportunity to confer with counsel before he rested his case. No request for a continuance was made. There is no showing in the record as to the need for any additional witnesses in appellant's behalf, or any request to the court for assistance in obtaining their presence. The record shows neither bad faith on the part of the government nor prejudice to the appellant.
28
The briefs contain discussion and citations as to the question of the availability of the discovery rules in habeas corpus and 2255 proceedings.3 In view of our disposition of the case we do not reach the question.
THE UNCONTESTED ISSUES Issues 1c, 2, 3 and 4
29
The court found that no evidence at all was produced by appellant in support of certain of the issues outlined in the pretrial order, namely those contained in Nos. 1c, 2, 3 and 4 set forth above and found against appellant on the merits as to these issues.
30
As to this ruling, the court was clearly correct. In Sanders v. United States, 373 U.S. 1, at page 22, 83 S.Ct. 1068, at page 1081, 10 L.Ed.2d 148 (1963), the court stated:
31
'Finally, we remark that the imaginative handling of a prisoner's first motion would in general do much to anticipate and avoid the problem of a hearing on a second or successive motion. The judge is not required to limit his decision on the first motion to the grounds narrowly alleged, or to deny the motion out of hand because the allegations are vague, conclusional, or inartistically expressed. He is free to adopt any appropriate means for inquiry into the legality of the prisoner's detention in order to ascertain all possible grounds upon which the prisoner might claim to be entitled to relief. Certainly such an inquiry should be made if the judge grants a hearing on the first motion and allows the prisoner to be present. The disposition of all grounds for relief ascertained in this way may then be spread on the files and records of the case.'
FACTUAL ISSUES
32
Appellant was accorded a full evidentiary hearing. At this hearing appellant presented evidence on only two of the major issues outlined in the pretrial order and stipulation, namely--
33
(1) whether his guilty pleas were induced by a confession illegally obtained (Issues 1a and 1d, supra); and
34
(2) whether his guilty pleas were induced by an alleged promise made to him by an FBI agent, to the effect he would receive only a ten year sentence (Issue 1b, supra). The record is clear that appellant elected to present evidence only on these issues and made his election after conferring with his court appointed counsel.
35
The district court carefully evaluated all the testimony at the hearing, as well as the entire file in this proceeding below, which included letters and affidavits of the appellant and other material. The trial court determined that appellant's confession to the nine robberies was illegally obtained in violation of appellant's right to counsel and his right to remain silent. Escobedo v. State of Illinois, 378 U.S. 478, 490-491, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). The court further determined that the pleas of guilty were voluntary and not induced or caused by the prior confessions.
36
The existence of illegally obtained evidence alone is not a sufficient ground to set aside a conviction. It must be shown that the illegally obtained evidence induced or caused the guilty pleas, so as to render them involuntary. Norris v. Wilson, 378 F.2d 324 (9 Cir. 1967), holds that the allegations of the petitioner were insufficient to show that the guilty pleas were 'the coerced product of a tainted confession.' In Doran v. Wilson, 369 F.2d 505, 507 (9 Cir. 1966), the court said:
37
'It can be argued that in every case where the government has obtained evidence by conduct that violates the Fourth Amendment, or has obtained statements in a manner that violates the Fifth and Sixth or either of them, its possession of such evidence will necessarily enter into a defendant's decision to plead guilty. But a decision to plead guilty can still be free and voluntary under these circumstances, and that is all that is required. A defendant's primary motivation in pleading guilty, regardless of what has gone on before, may be his own knowledge of his guilt and a desire to take his medicine. As the cited cases indicate, whether he was so motivated may be a question as to which he is entitled to a hearing by the habeas corpus judge. * * *'.
38
Our case is a stronger one than Norris v. Wilson, supra, where no evidentiary hearing was held. Our case is like Knowles v. Gladden, 378 F.2d 761, 766-767 (9 Cir. 1967), where an evidentiary hearing was held and the trial court found the plea of guilty voluntary, notwithstanding petitioner's contentions that prior coerced confessions induced the plea.
39
With regard to whether the illegal confessions induced or caused the guilty plea, the only testimony supporting this contention was that of appellant. The district court refused to credit appellant's testimony because of (1) the various contradictory stories the appellant had given to explain his decision to plead guilty; (2) appellant's admission that he had lied to the court at earlier proceedings; (3) letters to the court, in substance admitting his guilt and describing his discomfort and concern following the commission of the crimes; and (4) affidavits filed by appellant in which he stated that the sole ground for his guilty plea was the alleged promise by the FBI agent.
40
In addition, appellant knew from the time of his arraignment, immediately following his arrest, that witnesses had identified him and his finger prints had been found on the teller's counter.4 As stated in Doran, supra, the court found in substance that the motivation for his pleas of guilty was 'his own knowledge of his guilt and a desire to take his medicine.' (369 F.2d p. 507).
41
As to the said alleged promise (Issue 1b, supra), the court did not credit the appellant and instead credited and believed the testimony of the FBI agent. Issue 5 supra, was a combination of various other issues and the trial court found against appellant.
42
The district court's findings on the factual issues that were tried and on which evidence was offered, are clearly supported by the record.
43
The judgment is affirmed.
44
On Petition for Rehearing.
45
On petition for rehearing appellant claimed that parts of the reporter's transcript had not been transcribed and that these and other parts of the record were not supplied to him, although designated by him for the record.
46
We ordered the missing portions of the transcript, other parts of the record and the Exhibits supplied to him and required that he specify if any portions of the transcript were still missing. He has not done so. We conclude he has had the entire record.
47
We have reviewed the entire record on the petition for rehearing and nothing in the omitted portions of the transcript, portions of which were not before us at the time of the preparation of the opinion, changes our views as to the case.
48
Since our decision the Supreme Court has decided Harris v. Nelson, (1969) 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 which reversed Wilson v. Harris, (9 Cir. 1967) 378 F.2d 141, a case relied on by the trial court. We did not rely on Wilson v. Harris, supra, in our opinion. The reversal has no effect on our decision.
49
The petition for rehearing is denied and the suggestion for a hearing in banc rejected by the entire court.
*
Hon. William T. Sweigert, United States District Judge, Northern District of California, sitting by designation
1
The United States points out, by way of excuse for its failure to answer the Request for Admissions, that at the pretrial conference in February of 1967, the appellant was represented by his counsel; during the meeting the court asked how soon the discovery process could be completed and whether the Request for Admissions could be filed by February 17, 1967. The appellant's counsel replied 'I will.' The court asked: 'Any interrogatories and request for admissions?' To this the appellant's counsel replied, 'Served and filed by February 17.' The position of the United States is that it expected the attorney to file the request for admissions and hence paid no attention to the request filed by appellant in pro per. Our decision does not turn on this factual situation
2
'Petitioner sought to have all the requests considered admitted for failure to answer the requests. The court denied this request and enlarged the time within which to answer. * * *'
'Certain of the requests were objected to on the ground that they were ambiguous. To eliminate this objection petitioner consented to amendment of the requests. The requests which are admitted appear below in their amended form. The term 'secret interrogation' is amended to mean interrogation by law enforcement officers while in custody. Request No. 35 was withdrawn by petitioner. The government could neither admit or deny requests No. 14, 17, 18, 19, 40, 41 and 44 on the ground that sufficient information was not available to the government. Requests No. 3, 4, 5, 45-53 inclusive were objected to as immaterial and this objection was sustained.' The government admitted the requests made in 1, 11, 33, 34, 37, 38, 39 and 42. Except as shown above, all other requests were denied by the government.
3
The government cites Wilson v. Harris, 378 F.2d 141 (9 Cir. 1967), concerning Rules 26 and 33 F.R.Civ.P.; and Burleson v. United States, 205 F.Supp. 331 (W.D.Mo.1962). The appellant cites many cases not pertinent, and United States ex rel. Seals v. Wiman, 304 F.2d 53, 64 (5 Cir. 1962); cert. denied 372 U.S. 915, 83 S.Ct. 717, 9 L.Ed.2d 722, and Wilson v. Weigel, 387 F.2d 632 (9 Cir. 1967), permitting a deposition to be taken
In denying the motion for summary judgment and holding that the failure to answer the requests for admissions did not automatically foreclose the matter, the trial court had relied upon Wilson v. Harris, supra.
4
Appellant was arrested by the FBI, taken before the United States Commissioner, and, properly arraigned
The Commissioner's complaint on which he was arraigned read in part, '* * * this complaint was based on the fact that witnesses have identified photos of defendant as being the culprit. The Los Angeles police have identified the finger prints lifted from the teller's counter as being that of the defendant.' This complaint was read to him at the time of his arraignment. It had been verified by the FBI agent. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3036644/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-2270
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Santiago Villagomez-Lopez, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: January 18, 2005
Filed: January 19, 2005
___________
Before WOLLMAN, MURPHY, and BENTON, Circuit Judges.
___________
PER CURIAM.
Santiago Villagomez-Lopez appeals from the final judgment entered by the
district court1 upon his guilty plea to an illegal-reentry charge, in violation of 8 U.S.C.
§ 1326(a). On appeal, his counsel has moved to withdraw and filed a brief under
Anders v. California, 386 U.S. 738 (1967), arguing that the district court did not
exercise discretion in denying a downward departure for overrepresentation of
criminal history. Having reviewed the record, we conclude that the district judge
recognized that he had the authority to depart, properly based his decision on the facts
1
The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
of the case, and made a discretionary decision based on those facts. Having found no
other nonfrivolous issues after reviewing the record independently under Penson v.
Ohio, 488 U.S. 75 (1988), we affirm. We also grant counsel’s motion to withdraw.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/296927/ | 443 F.2d 273
Ward KING, Plaintiff-Appellant,v.LABORERS INTERNATIONAL UNION OF NORTH AMERICA, UNION LOCAL NO. 818, Defendant-Appellee.
No. 20583.
United States Court of Appeals, Sixth Circuit.
May 13, 1971.
Robert B. Wallace, for amicus curiae.
Alfred W. Blumrosen, Newark, N. J., for appellant.
Stanley P. Hebert, General Counsel, David R. Cashdan, Robert B. Wallace, Attys., Equal Employment Opportunity Commission, Washington, D. C., on the brief for U. S. Equal Employment Opportunity Commission, amicus curiae.
Jerry A. Farmer, Knoxville, Tenn., Norbert J. Slovis, Jerry A. Farmer, Knoxville, Tenn., on the brief; Lockett, Slovis, Weaver & Johnson, Knoxville, Tenn., of counsel, for appellee.
Before CELEBREZZE and MILLER, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.
CELEBREZZE, Circuit Judge.
1
This is an appeal from the United States District Court for the Eastern District of Tennessee, involving an alleged practice of discrimination on the basis of race in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. §§ 2000e et seq., as amended in 1966.
2
In May, 1968, Ward King filed a charge of discrimination with the Equal Employment Opportunity Commission, (hereinafter referred to as the EEOC) alleging that the Laborers International Union of North America, Local No. 818 (hereinafter referred to as the Union)
3
"committed an unlawful employment practice in violation of Title VII of the Civil Rights Act of 1964 by unlawfully refusing [Mr. King] equal opportunity to picket because of his race."
4
Upon investigation, the EEOC found reasonable cause to believe that the Union had violated its statutory duty not "to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race * * * [or] color" by unlawfully refusing to Mr. King, because of his race, an equal opportunity to be on the Union's picket lines. 42 U.S.C. § 2000e-2(c) (1) (1964). On May 29, 1969, the EEOC advised Mr. King it was unable to obtain voluntary compliance through conciliation and that he could file suit pursuant to statute. 42 U.S.C. § 2000e-5 (1964). This civil action for private enforcement of Title VII right of the Civil Rights Act of 1964 ensued.
5
In January, 1970, counsel for Mr. King moved for a jury trial and such motion was granted. In February, 1970, a trial was conducted. At the close of the evidence, the District Court charged the jury, in relevant part, as follows:
6
"Members of the jury, Ward King filed this action under Title 42, Section 2000e-5 of the United States Code, against defendant Laborer's International Union of North America, Union Local No. 818, Knoxville, Tennessee, claiming discrimination by defendant because of his race. He claims that the unlawful discrimination started around March, 1968 and continued to June 17, 1969, the later date being the date he filed this action.
7
"He further says that he is entitled to recover those back wages or back compensation, whatever you want to call it, in the amount of $383.00 and other damages as the direct and proximate result of the alleged unlawful discrimination.
8
* * * * * *
9
"Plaintiff says that the defendant would not allow him to share equally in picketing opportunities made available to members of the Union because of his race.
10
* * * * * *
11
"Defendant admits that the plaintiff has not been used as a picket in some instances but that this action has been based upon the plaintiff's condition, attitude or actions while used as a picket and that he has never been denied such picket rights because of his race.
12
* * * * * *
13
"At the outset the Court charges the jury that in order for there to be a violation of the Fair Employment Act, a portion of which has been read to you, there must be an intentional pattern and practice upon the part of this Union to discriminate against this plaintiff because of his race and not an isolated instance of discrimination. If there was an intentional pattern of discrimination against this plaintiff because of his race, then there was a violation of the Act and if plaintiff suffered any damages as a direct and proximate result of such violation, he would be entitled to recover in this lawsuit. On the other hand, if there was no intentional pattern and practice of discrimination by this Union against this plaintiff by reason of his race, the plaintiff would not be entitled to recover in this lawsuit.
14
"The burden is upon the plaintiff. Before plaintiff can recover in this lawsuit he must show that this Union intentionally followed a practice or pattern of discrimination against him by reason of his race. Where the proof is upon a particular person, he must carry that proof by what is known as a preponderance of the evidence. That means the greater weight of the evidence. It may or may not be based on the number of witnesses introduced but it depends on the believability of the jury as to whether or not the party has carried the burden of proof.
15
* * * * * *
16
"The Court charges you that if you find from the preponderance of the evidence that defendant followed a pattern or practice of discrimination against this plaintiff because of his race by refusing to allow this plaintiff to participate equally in picketing opportunities made available to members of Local Union 818 because of his race during the period of October 23, 1967 to July 1, 1969, and that as a direct and proximate result thereof plaintiff sustained damages, in that situation plaintiff would be entitled to recover.
17
"On the other hand, if you find that the preponderance of the evidence fails to show that they followed a practice of discrimination against this plaintiff because of his color; or if you find that plaintiff was discriminated against but further find that he did not sustain any damages as a direct and proximate result of such alleged discrimination, plaintiff would not be entitled to recover in this lawsuit.
18
"In the event you find for the plaintiff, he is entitled to recover such damages as directly and proximately resulted from the alleged illegal discrimination, including any loss of compensation resulting from defendant's refusal to allow him to picket solely on account of his race."
19
Counsel for Appellant did not raise any objection to the Court's charge.
20
Before considering the substantive issues raised on appeal, we turn to the procedural issues raised by the Appellee. On July 14, 1970, three months after Appellant filed his notice of appeal but less than a month after this Court denied Appellant's motion for a transcript at the Government's expense, the Appellee moved for dismissal. Appellee contended it was entitled to a dismissal because the Appellant had not filed a transcript within forty days of the original notice of appeal. Rules 11(a), 12(c), Federal Rules of Appellate Procedure, and that a brief had not been filed within forty days after the date on which the record had been filed. Rule 31(a) and (c). Federal Rules of Appellate Procedure.
21
The rules cited by Appellee are stated in permissive, rather than mandatory language. We are not required to dismiss every appeal which does not meet each of the time limitations in the above-stated rules. See with regard to Rules 11 and 12, Federal Rules of Appellate Procedure, Black v. United States, 269 F.2d 38 (9th Cir. 1959) cert. denied 361 U.S. 938, 80 S.Ct. 379, 4 L.Ed.2d 357; United States v. Bowen, 310 F.2d 45 (5th Cir. 1962); Watley v. United States, 221 F.2d 476 (5th Cir. 1955). See with regard to Rule 31, Federal Rules of Appellate Procedure, Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union 524 v. Billington, 402 F.2d 510 (9th Cir. 1968); United States v. Edwards, 366 F.2d 853 (2d Cir. 1966) cert. denied 386 U.S. 908, 87 S.Ct. 852, 17 L.Ed.2d 782; Phillips v. Employers Mutual Liability Ins. Co. of Wisconsin, 239 F.2d 79 (5th Cir. 1956).
22
In the instant case, the Appellant duly proceeded from the District Court in forma pauperis and without aid of assigned counsel. His notice of appeal was filed in a timely fashion. Mr. King diligently proceeded to appeal the District Court's adverse decision with regard to the printing of a transcript at Government expense, to have the EEOC represent his interests on appeal and to state the issues upon which his appeal was based. Had the Appellant requested an extension of time for the disposition of his motion to obtain a transcript at Government expense, we would have granted such an extension of time. In view of the Appellant's obvious inexperience with the judicial procedure and his good faith pursuit of his remedies, we believe it would be improper and unjust to dismiss his appeal for a simple failure to make a request for an extension of time.
23
In September, 1970, we permitted the EEOC to represent Appellant's interests on appeal. There have been no subsequent delays. Further, Appellee has not alleged any uncured prejudice by the delays which occurred before its motion to dismiss. Accordingly, Appellee's motion to dismiss pursuant to Rules 11, 12 and 13, Federal Rules of Appellate Procedure, is hereby denied.
24
We now turn to the substantive issues raised on appeal. The EEOC contends, in behalf of itself and the Appellant, that the District Court's charge was so defective in at least three important respects that it constituted plain error, both "obvious and prejudicial." O'Brien v. Willys Motors, Inc., 385 F.2d 163, 166 (6th Cir. 1967). See United States v. Atkinson, 297 U.S. 157, 56 S.Ct. 391, 80 L.Ed. 555 (1936). We agree.
25
First, the EEOC contends that the District Court improperly instructed the jury that in order for there to be a violation of Title VII "there must be * * * [a] pattern and practice * * * [of discrimination], not an isolated instance of discrimination." Such an instruction to the jury, the EEOC maintains, constituted "obvious and prejudicial" error.
Congress has provided that:
26
"(c) It shall be an unlawful employment practice for a labor organization —
27
(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex or national origin; * * * 42 U.S.C. § 2000e(c) (1)."
28
To enforce an aggrieved party's statutory rights and eliminate unlawful employment practices, Congress provided for three types of proceedings in federal courts: (1) after proceedings by the EEOC, a person claiming to be aggrieved may initiate a private civil action, 42 U.S.C. § 2000e-5(e); (2) after an order of a court issued in a civil action, the EEOC may commence proceedings to compel compliance with the prior order of the court, 42 U.S.C. § 2000e-5(i), EEOC v. Local Union No. 189 et al., 438 F.2d 408 (6th Cir. 1971); and (3) pursuant to certain limited statutory circumstances, the United States Attorney General may bring a civil action, 42 U.S.C. § 2000e-6
29
The statutory language authorizing the commencement of a private civil suit by an aggrieved person under Title VII differs materially from the language authorizing the initiation of a civil suit by the United States Attorney General. If an aggrieved individual alleges the existence of an "unlawful employment practice" as defined in 42 U.S.C. §§ 2000e-2, 2000e-3, he has made a sufficient substantive evidentiary showing to form a basis for a private civil action, 42 U.S.C. § 2000e-5. However, the United States Attorney General must allege that he "has reasonable cause to believe that [a certain person or group of persons] * * * is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter [42 U.S.C. § 2000e]; and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described." (Emphasis added) 42 U.S.C. §§ 2000e-5(e), 2000e-6, Jenkins v. United Gas Corp., 400 F.2d 28, 32-33 (5th Cir. 1968). See Newman v. Piggie Park Enterprises, 390 U.S. 400, 401 n. 2, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968).
30
The District Court erred in charging the jury in accordance with the high statutory standard of proof required by Congress of suits brought by the United States Attorney General. 42 U.S.C. § 2000e-6. Whereas it should have charged the jury in accordance with the statutory standards set out in 42 U.S.C. §§ 2000e-2, 2000e-5. The jury should have been instructed that a single instance of discrimination may form the basis of a private suit.
31
Congress established the private aggrieved party as a vindicator of the public right of compliance with the Civil Rights Act of 1964. In securing "compliance with the law," Newman v. Piggie Park Enterprises, 390 U.S. at 401, 88 S. Ct. 964 an aggrieved party necessarily seeks to eliminate an act or acts of discrimination as they affect him. Numerous private cases have found a Title VII violation upon showings of proof limited to a single act (e. g. a single breach of the duty of fair representation; a discharge or failure to train for advancement based upon racial motivations or causes) or a single practice of unlawful discrimination against the aggrieved party. St. Clair v. Local Union No. 151, 422 F.2d 128 (6th Cir. 1969); Everett v. Trans-World Airlines, 298 F.Supp. 1099, 1102 (W.D.Mo.1969); Culpepper v. Reynolds Metals, 296 F.Supp. 1232 (N.D.Ga.1970). See Phillips v. Martin Marietta, 401 U.S. 542, 91 S.Ct. 496, 28 L.Ed.2d 613 (1971). We do not believe that a jury could reasonably have understood the District Court's charge to have permitted a finding in favor of Appellant in those instances where only a single act or practice of discrimination was shown. Title VII of the Civil Rights Act of 1964 clearly contemplates that private litigants may succeed in a civil action upon such a showing. We find that the District Court's charge placed an "obvious and prejudicial" burden upon the Appellant.
32
Second, the District Court's charge on several separate occasions indicated that the Appellant would have to prove the Appellee engaged in an "intentional pattern" or an "intentional pattern and practice."
33
While actual or implied intent to discriminate on an unlawful basis is a necessary element of an action brought by the United States Attorney General, 42 U.S.C. § 2000e-6, it is not expressly included as a pre-requisite to a private civil suit, 42 U.S.C. § 2000e-5(e). In a private civil suit, the actual or implied intent of the party which has allegedly committed an unlawful employment practice becomes more relevant in determining whether injunctive remedies are available. 42 U.S.C. § 2000e-5(g). See Local 189, United Papermakers and Paperworkers v. United States, 416 F.2d 980, 995-997 (5th Cir. 1969). Assuming, without deciding, that some intent to discriminate is a necessary element in every case of a private litigant, we find the District Court erred in failing to explain to the jury that such an intent may be inferred from the totality of the Union's conduct, and the circumstances leading to the purported act of discrimination.
34
Third, we find the District Court erroneously instructed the jury that damages, if any, based on loss of compensation to Mr. King should be limited to those resulting from the Union's alleged refusal to allow him to picket "solely on account of his race."
35
Appellant was entitled to an instruction which permitted him to recover lost compensation unless there existed some other reason — "irrespective of [race]" — which would also form a valid non-discriminatory basis for the discrimination (e. g. inability to do the job assigned). 42 U.S.C. § 2000e-5(g). Phillips v. Martin Marietta, 401 U.S. at 542, 91 S.Ct. 496 (1971). Thus, if one is unlawfully discriminated against in violation of Title VII, an employer need not reinstate him or grant back pay if it can be shown that the employer also had a lawful non-discriminatory motivation for his actions which when considered by itself would have caused the same result as his discriminatory purpose. But where it can be shown that discrimination on the basis of race, color, religion, sex or national origin was, in part, a causal factor in a discharge or refusal to hire the aggrieved party, the aggrieved party is statutorily entitled to damages of lost compensation. 42 U.S.C. § 2000e-5(g). In St. Clair v. Local Union 515, 422 F.2d 128, 132 (6th Cir. 1969), this Court found a jury instruction which permitted recovery in excess of Title VII statutory limitations to be "plain error." Similarly, we find that the District Court's charge which unduly limited the Appellant's statutory right to loss of compensation under certain circumstances was also "plain error."
36
Based upon the errors in the District Court's charge to the jury, the judgment of the District Court is vacated and the matter is remanded for a new trial. The question of whether the District Court erred in granting Appellant's motion for a jury trial was not raised on appeal. However, upon remand, it would be well for the District Court to consider the growing body of jurisprudence which holds that the basic equitable issues involved in Title VII cases should not be subject to a jury determination. Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1125 (5th Cir. 1969); Gillin v. Federal Paper Board Co., Inc., 52 F.R.D. 383 (D. Conn.1970); Moss, Jr. v. Lane Co., Inc., 50 F.R.D. 122 (W.D.Va.1970); Long v. Georgia Kraft Co., 328 F.Supp. 681 (N. D.Ga.1969); Madlock v. Sardis Luggage Co., 302 F.Supp. 866 (N.D.Miss.1969); Hayes v. Seaboard Coastline Railroad Co., 46 F.R.D. 49, 52-53 (S.D.Ga.1968); Cheatwood v. South Central Bell Telephone & Telegraph Co., 303 F.Supp. 754, 755-756 (M.D.Ala.1968). See 110 Cong. Rec. 7255 (1964). See also, Culpepper v. Reynolds Metals Company, 296 F. Supp. 1232, 1239-1242 (1969) reversed and remanded on other grounds, 421 F. 2d 888 (5th Cir. 1970).
37
Reversed and remanded.
38
O'SULLIVAN, Senior Circuit Judge (dissenting).
39
I respectfully dissent. Rule 51 of the Federal Rules of Civil Procedure provides that:
40
"No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection."
41
In the case at bar, enforcement of this rule is excused by my brothers by finding that District Judge Robert L. Taylor committed "plain error" by giving the instruction set out in the majority opinion. This accused instruction was obviously satisfactory to appellant's attorney at the time it was given, and was consistent with and relevant to the case that the plaintiff-appellant pleaded and relied on for his recovery. In my view, the instruction not only was not "plain error," it was not error at all. I will, however, confine my discussion to the claim of "plain error."
42
I read O'Brien v. Willys Motors, Inc., 385 F.2d 163 (6th Cir. 1967) as limiting our use of "plain error" to excuse obedience to Rule 51 to situations where the claimed error is "obvious and prejudicial to a party." We there recited the United States Supreme Court's advice as to when the "plain error" rule should be invoked. In United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555, 557 (1936), the Supreme Court said:
43
"`In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings.'" (Emphasis supplied.) In Eaton v. United States, 398 F.2d 485, 486 (1968), we said:
44
"The plain error rule was intended to be and should be applied to serve rather than to subvert the ends of justice. The rule is to be invoked only in exceptional circumstances to avoid a miscarriage of justice."
45
In Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 (1943), Mr. Justice Douglas, speaking for a unanimous court, expressed that view that "plain error" should not be employed to permit a litigant, having chosen a style of presenting his case at trial, then to obtain a new trial because of an error to which he assented at a first trial. He said:
46
"Any other course would not comport with the standards for the administration of criminal justice. We cannot permit an accused to elect to pursue one course at the trial and then, when that has proved to be unprofitable, to insist on appeal that the course which he rejected at the trial be reopened to him." 318 U.S. at 201, 63 S.Ct. at 555, 87 L.Ed. at 713.
47
The "plain error" claimed to infect Judge Taylor's charge resides in his statement that for there to be a violation of the Fair Employment Act, "there must be an intentional pattern and practice upon the part of the union to discriminate against the plaintiff because of his race," and that plaintiff was required to prove that defendants "followed a practice of discrimination." It is argued that one act of discrimination is sufficient. That may indeed be true, but that was not the cause of action pleaded or relied upon by the plaintiff in this case. There is no allegation in the complaint that defendant's wrong consisted in one or more instances of discrimination. In the brief to us the EEOC heads his argument in this style:
48
"An Isolated Instance of Discrimination May Constitute an Unlawful Employment Practice in Violation of Title VII."
49
I would not take issue with such an academic and abstract assertion, but that was not what was involved in the lawsuit tried in the District Court.
50
I first point out that throughout its language the relevant section of the statute here relied upon — 42 U.S.C. § 2000e-5 — the misconduct which will violate the statute is referred to as "an unlawful employment practice" and in the subsection (g) thereof where various remedies available to a wronged employee are set out, the subsection begins:
51
"If the Court finds that the respondent [an employer] has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint * * *." (Emphasis supplied.)
52
and then provides for the relief which can be given upon proof of a violation of the Act.
53
The complaint whereby plaintiff began his action asked that defendant be enjoined from continuing its "policy, practice, custom and usage" denying plaintiff equal employment opportunities. This basic pleading recited that plaintiff was asserting an action for the prevention of "unlawful employment practices" under 42 U.S.C. § 2000e-5; it charged that plaintiff sought back pay because of defendant's discriminatory "practices"; that it is "the policy of the defendant to first designate for picket duty those members of the Local who are unable to work at a regular job"; that "on numerous occasions" he was refused picket duty because of his race; and that the enforcement of this practice caused him injury. No "isolated instance" of discrimination is mentioned anywhere in the cause of action pleaded. The complaint recited that plaintiff King had filed a charge against the defendant union with the Equal Employment Opportunity Commission and a copy of that Commission's decision was attached to the Complaint filed in the District Court. The decision of the EEOC discloses that "[The] Charging Party [plaintiff] is totally disabled 60-year-old Negro member of Respondent Union;" that "[i]t is undisputed that Charging Party is unable to engage in the type of gainful employment which Respondent normally affords its members." It appeared there also that plaintiff is receiving Social Security benefits as a totally disabled person. The Decision of the EEOC recites that:
54
"Respondent's records reveal that, of those individuals allowed to picket from January 1968, through August 12, 1968, Charging Party [plaintiff King] was the only picket unable to engage in regular physical labor. The records also show that Caucasian members who are capable of working at a regular job have received more frequent assignments to picket for pay during the pertinent period than Charging Party. Charging Party earned $255.00 during this period while at least one able-bodied Caucasian member earned $638.00 for picketing.
55
"Accordingly, circumstances underlying the difference in the amount of pay received by Charging Party and Caucasian members require close scrutiny. Respondent's record shows that, in 1967, Charging Party received the major share of picketing earnings, apparently, because all other members were regularly employed in the industry during this period."
56
The Equal Employment Opportunity Commission then concluded:
57
"While the matter is not entirely free from doubt, we are persuaded by Respondent's failure to explain the pattern of picket duty assignment which appears to be related only to the race of the applicants."1
58
Thus, it appears that the EEOC was dealing with a "pattern of picket duty assignment" and neither the Commission, the District Court, nor the plaintiff's pleaded cause of action was dealing with any "isolated instance of discrimination."
59
The instruction given fitted the case which the plaintiff pleaded and relied upon. At the conclusion of the District Judge's charge, the following colloquy took place:
60
"Does either side want the jury excused while I call for suggestions or requests? If either side wants the jury excused I will.
61
"Mr. Henley: [The attorney for appellant King] We have no objections or further requests.
62
"Mr. Slovis: We have no objections or requests, Your Honor.
63
"The Court: Let the record show that the Court asked the attorneys for the plaintiff if plaintiff has any objections to any part of this charge or any special requests, and what was the answer, counsel?
64
"Mr. Henley: [The attorney for appellant King] The answer was no."
65
The District Court file discloses that in commencing this action appellant King was represented by three attorneys, one of whom was Senior Staff Attorney for the Legal Clinic of the University of Tennessee. Upon their motion and before trial, plaintiff's original attorneys were permitted to withdraw because "Plaintiff refuses to take their best advice and desires to obtain other counsel who will advise him as he wishes."
66
In a pretrial order, it appears that the alleged wrong charged to defendant is a pattern and practice; no "isolated instance" is referred to in the pretrial order or in any other pleading. Plaintiff's claim was that the defendant "refused to allow plaintiff to share equally in picketing opportunities made available to members of the Local Union because of his race." The period of the alleged violations extended from October 23, 1967, to the date of the filing of the complaint, May 1, 1969, without reference to any specific date or "isolated instance." Included also in the pretrial order was the stipulation that:
67
"Parties will submit trial brief * * * and include therein anything that should be told to the jury other than under Title 42, Section 2000(e)(2) (c) (1) race discrimination as forbidden in employment."
68
On February 20, 1970, following the jury's verdict, the attorney who tried the case for plaintiff was allowed to withdraw as counsel. On appeal, briefs for appellant were filed amicus curiae by the staff of the General Counsel for the EEOC. The cause was argued to us by a professor from the law school of Rutgers University. I cannot join in finding "plain error" in what the District Judge did in this case.
69
I add the further observation that upon the retrial ordered by my brothers it should be within the discretion of the District Judge whether to allow plaintiff to withdraw his demand for a jury trial and have the case tried to the Court. The appellant, aided on appeal by new counsel, asks this opportunity. I do not favor allowing a litigant to try his case first before a jury, as demanded by him, and, having lost, to permit him to choose, on retrial, a different tribunal. See Johnson v. United States, supra, 318 U.S. 189, 201, 63 S.Ct. 549, 87 L.Ed. 704, 713 (1943).
70
I would affirm.
Notes:
1
It appears that appellant was totally disabled during the relevant periods, drawing maximum social security benefits. Thus, pay by the union for picketing duty was a "windfall" to appellant. He was given the "major share" of this when his fellow unionists were regularly employed, but when they were out of work it appeared that they were given more picketing duty than appellant
A further paragraph of the EEOC Decision says:
"With respect to Charging Party's allegation that he was not paid for several occasions when he picketed for Respondent because of his race, the record clearly shows that on each occasion cited by Charging Party, Respondent paid no pickets, Negro or Caucasian. Charging Party's allegation is thus disproved by the record." | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1554723/ | 36 So.3d 111 (2010)
S.H.
v.
STATE.
No. 4D09-2734.
District Court of Appeal of Florida, Fourth District.
May 19, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1554924/ | 429 F.Supp. 533 (1975)
George BLASINI-STERN, Plaintiff,
v.
BEECH-NUT LIFE SAVERS CORP., Defendant.
Civ. No. 74-1024.
United States District Court, D. Puerto Rico.
Order September 12, 1975.
On Motion for Leave to Make Deposit May 7, 1976.
Antonio Zapater-Cajigas, Ponce, P.R., for plaintiff.
Federico Calaf-Legrand, San Juan, P.R., for defendant.
ORDER
TOLEDO, Chief Judge.
The facts of this case can be summarized as follows: By public deed dated June 12, 1967, the plaintiff and his wife granted a lease to the Federación Puertorriqueña de Cooperativas de Consumo for a period of fifteen (15) years, beginning on March 6, 1967. The real property consisted of a lot located in the ward known as Canas of the City of Ponce, consisting of 6,833.72 square meters. In this lot there exists an industrial building with steel columns, walls of blocks and with a roof of steel beams and aluminum sheets, constructed on a floor base with a total area of 41,289.64 square meters.
Subsequently, the referred lessee changed its name to Cooperativa de Consumidores Unidos de Puerto Rico (hereinafter referred to as Uni-Coop).
*534 By contract dated September 15, 1971, the above mentioned lessee subleased to the defendant, Beech-Nut Life Savers Corp., a part consisting of 4,880 square feet of the building for a term of five years from said date, and for a monthly rental of $650.00, to be paid in advance each month.
During April, 1972, and due to financial difficulties (bankruptcy) of the lessee (sub-lessor) Uni-Coop, it and plaintiff agreed and resolved to terminate and consider as cancelled the lease contract entered by both parties.
The defendant continued using the premises it had subleased. On January 22, 1974, the defendant notified plaintiff that effective January 1, 1974, its name had been changed to Distribuidora Internacional. During April, 1974, Beech Nut Life Savers Corp. informed the plaintiff of its intention to vacate that portion of the premises which it occupied, as of June 30, 1974, to which the plaintiff objected on the grounds of the existing contract in effect and the obligation of both parties up to September 15, 1976.
Pursuant to Act No. 13 of August 8, 1974 and in view of the fact that there are no clear precedents established by the Highest Court of the Commonwealth of Puerto Rico, this case is hereby certified to the Supreme Court of the Commonwealth of Puerto Rico to determine whether the cancellation of the original lease contract between plaintiff and Uni-Coop made ineffective the sublease contract between Uni-Coop and Beech-Nut Life Savers Corp. or whether it still exists.
The Clerk of the Court is ordered to submit this certification to the Clerk of the Supreme Court of the Commonwealth of Puerto Rico, under the seal of this Court together with an Appendix of the case.
IT IS SO ORDERED.
ON MOTION FOR LEAVE TO MAKE DEPOSIT
Defendant in the present case seeks to deposit in this Court the sum of $13,650.00, which sum constitutes a rental fee object of the present action. In its motion ". . . For Leave to Make Deposit . . ." filed on February 27, 1976, this party states that "Deposit of the above stated sum is made in order to avoid accrual of interests, should this [. . .] court find for the plaintiffs in the instant case."
Plaintiff has opposed said motion on the basis that the avowed purpose of the depositto avoid the accrual of interest is unavailable in the instant case as a matter of law.
Defendant's attempt to deposit moneys in court is regulated by Rule 67 of the Federal Rules of Civil Procedure, which provides:
"In an action in which any part of the relief sought is a judgment for a sum of money or the disposition of a sum of money or the disposition of any other thing capable of delivery, a party, upon notice to every other party, and by leave of court, may deposit with the court all or any part of such sum or thing. Money paid into court under this rule shall be deposited and withdrawn in accordance with the provisions of Title 28, U.S.C., § 2041, and 2042; the Act of June 26, 1934, c. 756, § 23, as amended (48 Stat. 1236, 58 Stat. 845), U.S.C. Title 31, § 725v; or any like statute."
Nothing in this rule provides for the stopping of interest accrual upon deposit in court. It should be made clear that we are not dealing here with an offer of judgment or a tender of payment. This is so because defendant, in the above mentioned motion, has specifically stated: "3. This motion for leave to make deposit does not represent, and is not to be understood, in any form whatsoever, as a waiver by Beech-Nut of its rightful and affirmative defenses, as recently set forth in the amended answer to complaint filed herein."
We now turn to the applicable law to consider on what circumstances the deposit of moneys in court can stop the running of interests. The Puerto Rico Civil Code, Title *535 31, Laws of Puerto Rico Annotated, Section 3180,[1] provides:
"3180. Tender of payment and consignation.
If the creditor to whom the tender of payment has been made should refuse to accept it, without reason, the debtor shall remain released from all liability by the consignation of the thing due.
The same effect shall be produced by the consignation alone when made in the absence of the creditor, or when the latter should be incapacitated to accept the payment when it is due, and when several persons claim to have a right to collect it, or when the instrument mentioning the obligation has been mislaid."
Section 3181 further provides:
"In order that the consignation of the thing due may release the obligor, notice thereof must previously be given to the persons interested in the fulfillment of the obligation.
Consignation shall have no effect when not strictly in accordance with the provisions governing payment."
(emphasis added).
It becomes self-evident that the deposit sought to be made here "to stop the running of interests" is neither an offer of judgment, regulated by Rule 68 of the Federal Rules of Civil Procedure nor a tender of payment, regulated by the portions of the Puerto Rico Civil Code, above cited.
It seems to us that in the present case defendant, very much like Voltaire's "Candide", is seeking the best of all possible worlds. His gesture can not be deemed an offer of judgment because it does not comply with the terms of Rule 68 of the Federal Rules of Civil Procedure. It is not a tender of payment because defendant still clings to its affirmative defenses which are directly relevant to the issue of whether there is in fact an obligation to pay. The tender of payment, as it is envisioned in the Civil Code, supra, presupposes the existence and recognition by debtor of his duty to pay and his insistence that said duty be extinguished.
Thus, it is inevitable that we conclude that in the present case defendant's deposit in court can not stop the accrual of interests. However, it should be noted that Rule 67 of the Federal Rules of Civil Procedure is broad enough to allow the deposit of said moneys if defendant so wishes, for the sake of safekeeping or other which is not in contradiction with what we have stated today.
Wherefore, in view of the foregoing, defendant's motion for leave to make deposit is hereby denied. Defendant is granted leave to deposit said moneys with the court without the legal consequences said party originally sought. The Clerk is directed to either return the check deposited or to accept it for safekeeping, with no other legal consequences regarding defendant's possible liabilities toward plaintiffs, attaching at this moment to the fact of the deposit.
IT IS SO ORDERED.
NOTES
[1] The jurisdiction of this Court in this case lies pursuant to Title 28, United States Code, Section 1332, and we are thus constrained to apply the substantive law of the Commonwealth of Puerto Rico. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3070547/ | COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00399-CV
KATHRYN MARIE PHILLIPS APPELLANT
V.
MARK PHILLIPS APPELLEE
------------
FROM COUNTY COURT AT LAW OF HOOD COUNTY
TRIAL COURT NO. CL213076
------------
MEMORANDUM OPINION 1 AND JUDGMENT
------------
We have considered appellant’s “Motion to Dismiss Appeal.” It is the
court’s opinion that the motion should be granted; therefore, we dismiss the
appeal. See Tex. R. App. P. 42.1(a)(1), 43.2(f).
Costs of the appeal shall be paid by appellant, for which let execution
issue. See Tex. R. App. P. 42.1(d).
PER CURIAM
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DELIVERED: May 7, 2015
1
See Tex. R. App. P. 47.4. | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/294289/ | 436 F.2d 1256
Petition of UNITED STATES STEEL CORPORATION and Petition ofDen Norske Amerikalinje A/S owner of the M/STopdalsfjord, for Exoneration from orLimitation of Liability. UNITED STATES STEEL CORPORATION andDen Norske Amerikalinje A/S, Appellants,v.Alice Marie LAMP, Administratrix of the Estate of DonaldLamp, Deceased, etal., Appellees.
Nos. 19835-19839.
United States Court of Appeals, Sixth Circuit.
Dec. 23, 1970.
Lucian Y. Ray, Cleveland, Ohio, Joseph Keig, Jr., Chicago, Ill. (Roman T. Keenen, Lucian Y. Ray, Thomas O. Murphy, Cleveland, Ohio, Johathan G. G. Bunge, Chicago, Ill., on the brief, for United States Steel Corporation and Den Norske Amerikalinje; McCreary, Ray & Robinson, Cleveland, Ohio, Price, Cushman, Keck & Mahin, Chicago, Ill., Johnson, Branard & Jaeger, Cleveland, Ohio, of counsel.
Abraham E. Freedman, Philadelphia, Pa. (Freedman, Borowsky & Lorry, Philadelphia, Pa., T. Harold Traverse, Cleveland, Ohio, on the brief), for Fuhrman and others.
Ned Mann, Cleveland, Ohio (Victor G. Hanson, Detroit, Mich., Robert L. Jason, Alpena, Mich., on the brief), for Alice Marie Lamp.
Dean A. Robb, Detroit, Mich. (Elmer L. Radka, Rogers City, Mich., Goodman, Eden, Robb, Millender, Goodman & Bedrosian, Deal A. Robb, Charles J. Barr, Detroit, Mich., on the brief), for Jean A. Cook.
Before PHILLIPS, Chief Judge, and WEICK and PECK, Circuit Judges.
JOHN W. PECK, Circuit Judge.
1
There are herein considered appeals perfected by two shipowners from judgments entered against them in favor of twelve injured parties or personal representatives of decedents and cross appeals by the latter groups protesting the alleged inadequacy of those judgments. Appellants will sometimes herein be referred to jointly as 'Shipowners' and separately as 'United States Steel' and 'Den Norske', respectively, and the injured parties and personal representatives of decedents as 'Claimants.' Claimants are seven seamen and five widows and administratrices of the estates of seamen who were allegedly injured or who lost their lives when the bulk carrier steamship Cedarville sunk in the Straits of Mackinac May 7, 1965. All such decedents and surviving claimants were members of the crew of that vessel.
2
The sinking of the Cedarville, owned by United States Steel, followed its collision with the Norwegian ship Topdalsfjord, owned by Den Norske. The collision occurred in a dense fog, and ten members of the Cedarville crew were lost and twenty more sustained injuries which resulted in the filing of claims. Five of the death claims and thirteen of the personal injury claims were settled during earlier stages of these proceedings, and we are here concerned with the remaining five claims of the next of kin of the decedents and of seven personal injury claimants. Petitions for exoneration from or limitation of liability were filed in the District Court1 immediately following the disaster, followed by the filing of claims by the various claimants. Reference is made to the opinion of the District Court (276 F.Supp. 163) for a detailed statement of the facts,2 which will be restated herein only to the extent required for present purposes. Punitive damages were awarded by the District Court against United States Steel, which perfected an appeal from such award to this Court. We determined the award of punitive damages to have been error in a decision specifically providing that that determination would have no effect upon the awarding of compensatory damages to the various claimants. United States Steel Corporation v. Fuhrman, Administratrix, 407 F.2d 1143 (6 Cir., 1969), cert. denied 398 U.S. 958, 90 S.Ct. 2162, 26 L.Ed.2d 542 (1970).
3
During the pendency of the punitive damages proceedings and appeal, a stipulation was entered into by counsel for all parties and approved by the Court. Under this stipulation the shipowners' petitions for exoneration and limitation of liability were denied and their claims dismissed with prejudice, and it was further provided that, subject to the right of review and appeal, the disposition of all claims for damages, excluding punitive damages, be determined by a commissioner to be appointed by the District Court. It was further stipulated that hearings concerning compensatory damages should proceed during the pendency of the punitive damage determination, which were to be submitted on stipulated portions of the record. As has been hereinabove indicated, the punitive damage issue has heretofore proceeded to finality.
4
Pursuant to this stipulation, the District Court appointed two Commissioners to receive the evidence with reference to all of the claims, and they in due course filed their Awards and Opinions for the various claimants. The District Court thereafter received and overruled objections and requests for modifications and accepted the facts found and law applied by the Commissioners in their awards and opinions 'as the findings of fact and rules of law of this Court.' By separate document of even date judgments in favor of the individual claimants for specified sums were entered and costs were assessed against the Shipowners. The amounts of the judgments are as follows:
5
Alice Marie Lamp, Administratrix of
the Estate of Frank Donald Lamp,
deceased $452,084.00
Jean Cook, Administratrix of the
Estate of Charles H. Cook, deceased 194,491.00
Barbara Fuhrman, Administratrix of
the Estate of Arthur Fuhrman,
deceased 338,095.00
Elizabeth Haske, Administratrix of the
Estate of Stanley Haske, deceased 308,702.00
Marion B. Jones, Administratrix of the
Estate of Eugene F. Jones, deceased 149,414.00
Jerone F. Kierzek 88,860.00
Stanley P. Mulka 92,740,00
Raphael Przybyla 196,288.00
Ronald G. Piechan 82,160.00
Billy R. Holley 251,976.00
Michael John Idalski 89,420.00
Walter Tulgetske 195,888.00
6
Before passing to a consideration of the separate items of damages itemized by the Commissioners in their determination of the claimants' awards, attention is directed to the issue presented concerning the scope of the present review. This issue was before us in the appeal dealing with the question of the allowance of punitive damages in the present case and we therein determined that 'Rule 52(a) applies to the findings of fact of the District Judge * * * notwithstanding that he heard no live testimony at the trial. Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218; United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746.' United States Steel Corp. v. Fuhrman, Administratrix, supra; see also Commissioner of Internal Revenue v. Spermacet Whaling & Shipping Co., 281 F.2d 646 (6th Cir. 1960). Thus at the very least, despite the view expressed in the separate concurrence in Fuhrman that the determination expressed therein on this point and in Spermacet constituted obiter dictum, the quoted conclusion is here controlling as the law of the case. Accordingly, we are here required to affirm the District Court unless we conclude its finding to have been 'clearly erroneous' under the definition provided by the Supreme Court:
7
'A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' United States v. United States Gypsum, supra, 333 U.S. at 395, 68 S.Ct. at 542.
8
It is against this yardstick that we measure the evidence of compensatory damages contained in the record.
I. PERSONAL INJURY CLAIMS
9
For their experiences at the time of the sinking, and for their alleged physical and mental disabilities resulting therefrom, the seven personal injury claimants were awarded a total of $997,332. The individual awards ranged from $82,160 to $251,976, and included the following specific elements of damages: loss of earning capacity from the date of the accident to the date of judgment, and for future loss of earning capacity; pain and suffering experienced during the sinking, from the date of the sinking to the date of judgment, and for future pain and suffering; loss of life's pleasures from the date of the sinking to judgment, as well as future loss of life's pleasures; maintenance and cure to the date of judgment; and the cost of future medical services.
10
Before turning to a discussion of the specific elements of damages awarded to the personal injury claimants, a few comments of a general nature are deemed appropriate.
11
The first pertains to the nature of the Commissioners' Opinions and Awards themselves. Those Opinions and Awards, although designated by the Commissioners as their findings of fact and conclusions of law, are entirely unsatisfactory in that respect. Despite the fact that these cases present difficult and complex issues of past and future damages, depending in large part on conflicting medical and psychiatric testimony, the Opinion and Awards for each individual claimant consisted only of a brief review of that testimony together with the claimant's testimony, and concluded with a bare conclusory finding such as:
12
'We determine that the claimant Idalski was injured on May 7, 1965 and was damaged thereby.'
13
In each instance a statement of this nature is followed by a listing of the dollar amounts awarded for each of the elements of damages allowed to the individual claimants.
14
We recognize that this abbreviated aspect of the Commissioners' findings here would not alone be sufficient to require reversal, especially since the findings were concerned with the question of damages rather than liability. Compare Ginsberg v. Royal Insurance Company, 179 F.2d 152, 153 (5th Cir. 1950) with Matton Oil Transfer Corporation v. The Dynamic, 123 F.2d 999, 1000-1001 (2d Cir. 1941). But such findings are of little aid to intelligent appellate review. The appellate court is left to presume that the Commissioners accepted the claimants' evidence and based their awards on some combination thereof, but if some of that evidence is found upon review to have been incompetent, the court can only speculate as to the degree to which such evidence influenced the Commissioners.
15
The next comment is less general in nature, but it pertains to a threshold issue common to each of the personal injury claims. To a very large extent the awards assigned to the various elements of damages were grounded upon the testimony of claimants' psychiatric and orthopedic experts. With particular reference to claimants' psychiatric expert, shipowners argue that he was a part of a 'circle of advocacy' otherwise composed of the claimants and their attorneys, and that his testimony should be discredited as it was by the Commissioner in the Matter of Petition of Keystone Tankship Corp. and Keystone Shipping Co., In Admiralty, No. 16,994, United States District Court for the Western District of Washington, Northern Division (the Bunkerhill) (237 F.Supp. 689). Were we sitting as the triers of fact, or were we not required by the law of the case as established in United States Steel Corporation v. Fuhrman, Administratrix, supra, to follow the rule of Gypsum, the inclination to so discredit his testimony would be strong upon us. In the existing circumstances, however, we are required to accept that testimony unless we possess 'on the entire evidence * * * the definite and firm conviction that a mistake has been committed,' or unless we conclude his pertinent testimony was inadmissible in the premises and improperly received in evidence.
16
Considering the credibility issue first, we find before us a record in which virtually all of the objective evidence is inconsistent with, if not actually diametrically opposed to, the opinions which the psychiatric expert was permitted to place in the record. These opinions are of a curiously similar pattern with reference to each of the personal injury claimants, almost always concluding that each seaman suffered indescribable horrors and has had his future life warped by a 'post-traumatic anxiety neurosis'-- resulting from a half hour's immersion in the waters over which they traveled for a livelihood. These opinions were based almost exclusively on interviews conducted for the purpose of preparing testimony for presentation to the Commissioners. In many respects these expert opinions failed to take into account such circumstances as pre-accident complaints and medical treatment for some of the conditions thereafter existing, and in connection with the dire prognostications do not recognize post-accident promotions and actual increases in earnings, nor satisfactory home and occupational adjustments.
17
An illustrative example is that of claimant Stanley Mulka. Mulka was sailing for the first time on the trip which culminated in the sinking of the Cedarville. Prior to sailing he had attended four years of high school and the first year of college at a Roman Catholic seminary, studying for the priesthood. He then had doubts about continued study for the priesthood, and these doubts apparently caused academic problems. He left college on academic probation early in 1965.
18
After the sinking Mulka abandoned his short-lived sailing career. He worked the remainder of the summer of 1965 as a plumber's helper and returned to college in the fall of 1965. Upon his return to college, he embarked on a course of study to prepare him to be a school teacher. His grades showed a marked improvement after his return to college, almost all A's and B's and he received an excellent rating as a student teacher. At the time of the hearing below Mulka was set to graduate from college, and he was virtually assured of a position as a teacher. In addition to his participation in normal college social life such as fraternities and special interest clubs, he had a steady girl friend and indicated plans of marriage.
19
Although Mulka testified that he suffered from constant headaches since the date of the accident and that he also suffered constant, sometimes excruciating, pain in his back, arms and hands since the date of the accident, cross-examination disclosed that he had sought medical attention for headaches prior to the sinking as well as after, but that he had not bothered to seek medical treatment for the 'excruciating' pain in his back, arms or hands since the date of the accident.
20
Claimants' psychiatrist, testifying solely on the basis of the history and symptoms related to him by Mulka, stated that he found Mulka to have deteriorated emotionally and scholastically after the date of the accident. He diagnosed his condition as a 'moderately severe anxiety neurosis' which would prevent Mulka from maintaining a job as a school teacher and would disable him to some extent in any occupation he undertook. Cross-examination disclosed to the psychiatrist for the first time many significant facts such as Mulka's academic improvement upon his return to college after the sinking, his excellent rating as a student teacher, and the fact that he had sought medical attention for serious headaches prior to the sinking, but the doctor saw no need to change his diagnosis.
21
Such factors form the basis for our dissatisfaction with this testimony, and applying the test of Gypsum, on the basis of the entire evidence, we express a definite and firm conviction that a mistake has been committed. However, we do not reject this testimony on this ground alone.
22
The rules under which doctors (as well as other experts) are permitted, as an exception to the general rule, to express opinions have been carefully formulated. The most important of those rules for present purposes is that a medical opinion based upon the history and subjective symptoms related to a doctor solely for the purpose of enabling him to testify at trial is inadmissible. Nashville, C. & St. L. Ry. v. York, 127 F.2d 606, 611-612 (6th Cir. 1942); Hardy-Burlingham Mining Co. v. Baker, 10 F.2d 277, 281 (6th Cir. 1926); Baltimore & O.R.R. v. Mangus, 294 F. 761, 762 (6th Cir. 1924). See Padgett v. Southern Ry., 396 F.2d 303, 308 (6th Cir. 1968). Shipowners contend that since the remarkably similar diagnoses of each claimant's alleged psychiatric disturbance were based solely on the medical history and subjective symptoms related to the psychiatrist by the claimants in order to qualify him to testify in their behalf, that opinion testimony was inadmissible.
23
Claimants do not challenge the correctness of this rule as it applies generally to the diagnosis of physical complaints, nor do they challenge the shipowners' assertion that the psychiatric diagnosis common to each claimant was based on the history and subjective complaints related to the doctor to qualify him to testify at trial. Rather, they claim an exemption from the general rule, arguing that the diagnosis of psychic disturbances requires the evaluation of the patient's history and subjective complaints. Indeed, claimants contend that the history, subjective symptoms, attitudes and feelings elicited by the psychiatrist from his patient are the only bases for an evaluation and diagnosis of a psychiatric disturbance.
24
Whatever persuasive effect this argument might have is vitiated by the fact that it finds no support in the record, and certainly the bases for psychiatric diagnosis cannot be judicially noticed. If it is true that psychiatric evaluation must be based in large extent on subjective evidence, the time may come when a separate rule of law will evolve establishing different admissibility standards for opinions as to mental and physical disorders (or the absence thereof). However, if such a distinction is ever to be made, it must be on the basis of evidence justifying a different standard, which in turn must be established by the testimony of experts. No such testimony is contained in the present record,3 and we will not substitute our lay judgment in this peculiarly nebulous field for evidence.
25
Even were we to accept the claimants' argument in this regard, it would meet only one of the reasons underlying the general rule outlined above, that of the objectionable hearsay nature of the doctor's narration of his patient's history and subjective complaints upon which his opinion was based. A separate but related policy reason for the rule is the exclusion of medical opinion testimony based on what may well be the self-serving declarations of the plaintiff to the examining doctor. See Padgett v. Southern Ry., supra. Where the plaintiff consults a doctor solely to qualify him to testify in his behalf at trial, any statements made to the doctor must be highly suspect as a basis for a diagnosis. This is particularly true where, as here, the complaint is entirely subjective, the plaintiff has made no attempt to secure treatment for the complaint, and there is at least some divergence between the history and symptoms related to the doctor and those testified to under oath. Accordingly, we hold the psychiatric opinion testimony to have been improperly admitted in this case.
26
A somewhat different situation exists with respect to medical opinion testimony of physical impairment. Five of the personal injury claimants, Holley, Idalski, Piechan, Przybyla and Tulgetske, offered the testimony of an orthopedic expert, who, like the claimants' psychiatric expert, was consulted by claimants solely for the purpose of enabling him to testify in their behalf at the hearing. At the outset of his testimony ship owners renewed their objection to the admission of any expert opinion testimony based upon the history related to the doctor by the claimant. Without explaining their inconsistent rulings, the Commissioners correctly ruled that the orthopedic expert would not be permitted to testify to the history given him by the claimants. In accordance with this ruling the orthopedist then testified to the symptoms observed by him during the examination of each claimant and stated his diagnosis of their various physical ailments based upon such observations. However, despite the ruling immediately prior thereto, with respect to the question of causation of the physical ailments he had diagnosed, the doctor was permitted to state that in his opinion they were caused by 'an incident of May 7, 1965.'
27
The admission of this opinion testimony of causation was error. Nothing in the record discloses the basis for the doctor's opinion as to causation other than the history related to him by the claimants in the course of their examination. As stated above, the opinion of an examining physician based upon the history related to him by the plaintiff is inadmissible. Nashville, C. & St. L. Ry. v. York, supra; Hardy-Burlingham Mining Co. v. Baker, supra; Baltimore & O.R.R. v. Mangus, supra; Padgett v. Southern Ry., supra. However, the admission of this testimony was not fatal to the claimant's claims of physical impairment resulting from the sinking. In Sentilles v. Inter-Caribbean Shipping Co., 361 U.S. 107, 80 S.Ct. 173, 4 L.Ed.2d 142 (1959), the Supreme Court held that the failure of any medical expert to testify that an accident aboard ship was the cause of a seaman's subsequent tubercular condition did not prevent the trier of the fact from inferring that the accident aboard ship was the cause. 361 U.S. at 109, 80 S.Ct. 173. We believe the erroneous admission of the opinion testimony of causation here creates a record in this case similar to that in Sentilles: no competent medical evidence of causation but sufficient evidence from which the Commissioners could infer that the physical disabilities diagnosed were caused by the sinking of the Cedarville.
28
In summary, with respect to the expert opinion testimony offered below in support of the claimants' allegations of physical and psychiatric disabilities, we are presented with a record which contains no competent evidence of psychiatric disturbances or disabilities but which does contain competent evidence of physical disabilities along with other evidence from which the Commissioners could properly infer a causal connection with the sinking of the Cedarville. It is with these principles in mind that we turn to a discussion of the individual elements of damages awarded by the Commissioners.
29
a. Pain and Suffering.
30
The most constant item in the Commissioners' awards is, as it is described therein, 'Pain and suffering for the May 7th event.' Four of the claimants were awarded $15,000 each for this item, while two (Idalski and Tulgetske) were allowed $10,000 each and one (Holley) was awarded $20,000. As has been indicated above, the Commissioners' Opinions and Awards disclose little of the basis for such awards. Under the general caption 'Pain and Suffering' they offer one lengthy but inappropriate quotation from American Law Reports but otherwise give no indication of the guidelines used in making their determination. Moreover, while Holley's situation is clearly distinguishable, it is difficult, if not impossible, to ascertain from the Commissioners' description of the experiences of the individual claimants during the sinking just what formed the basis for distinguishing Idalski's and Tulgetske's situation from those of the other four.4
31
The seven personal injury claimants were variously engaged at the moment of the collision of the Cedarville and the Topdalsfjord. Some were standing their regular watch; some were sleeping and were awakened by the noise and impact of the collision. However, all of the surviving claimants described the impact as relatively 'soft,' and none were injured by the impact of the collision itself. There then followed a period of time during which, despite the action of the crew members to halt it, the flow of water into the Cedarville rapidly increased. It therefore soon became apparent to the crew members that the Cedarville was going to sink and that it must be abandoned. In the resulting rush of events most of the crewmen were either thrown or required to jump into the water. They remained there for periods ranging from a few minutes to thirty to forty minutes before being picked up by their rescuers, but while in the water most were able to find their way to a life raft or a life boat within a matter of minutes.
32
A German ship, the Weissenburg, had been following the Topdalsfjord at a distance of about one mile, and its captain had 'seen' the collision on his radar screen. The Weissenburg immediately moved into position to pick up the Cedarville crew, and, within the thirty to forty minute time period referred to above, all of the survivors had been taken aboard the Weissenburg. They were there given blankets, dry clothes and warm drinks. Soon thereafter they were transferred to the Coast Guard Cutter Mackinac, aboard which they went to Mackinac City, Michigan, and thence to Cheboygan, Michigan. With but one exception all of the survivors were taken to the Cheboygan Hospital for examination; Mr. Piechan declined to go to the hospital.
33
Following examination, none of the claimants were found to require hospitalization, and all were returned to their homes the same afternoon. Claimant Holley, complaining of back pains, returned to the hospital that evening, however. He stayed there one night, underwent further examination, including x-rays, with negative results, and was released by the hospital the following day.
34
In spite of what can only be regarded as deficiencies in the disclosure of the basis for the Commissioners' Opinions and Awards, the awards to the individual claimants might be sustained on the basis of their individual testimony describing their personal experiences at the time of the sinking except for two factors. First, we regard the awards for pain and suffering on the occasion of the sinking as excessive. Second, we are clearly unable to conclude that the inadmissible but colorful testimony of the highly articulate psychiatric expert was not persuasive with the Commissioners. We thus have no alternative but to vacate these awards and to remand them for reevaluation and further findings on the basis of the present record exclusive of the incompetent psychiatric testimony.
35
Intervening chronologically between the pain and suffering items 'For the May 7th event' and those for the future are the pain and suffering damages allowed for the four-year period from the sinking to the date of the District Court judgment, May 7, 1969. An award in the sum of $10,000 (on the basis of $2,500 per year) was allowed on this account to each of the claimants except for Idalski, who received a $12,000 award (on a $3,000 per year basis).
36
As in the case of the pain and suffering allowance 'For the May 7th event', the Commissioners' Awards and Opinions set forth no satisfactory basis for the determination of these interim period awards (except that again Holley's situation is distinguishable and in Idalski's case, perhaps to justify the higher award made to him, passing mention is made of pains in the left leg, shoulder, shin and elbow area). However, also as in the case of the 'For the May 7th event' awards, the fact remains that although there is some evidence in the record as to the claimants' discomfort for a past period, we conclude the amount of the awards to be excessive, and we are unable to say that the inadmissible testimony of the psychiatric expert was not a factor in the determination thereof. Thus these awards must also be vacated and remanded for further findings and reevaluation without such testimony.
37
The awards for future pain and suffering, which ranged from $5,000 to Mulka (50 years, his life expectancy, at $100 per year) to $35,200 to Tulgetske (10 years at $2,000 per year and 15.2 years at $1,000 per year, for a life expectancy of 25.2 years), present a similar picture. While the basis of the Commissioners' awards for pain and suffering experienced during the events surrounding the sinking and until the date of judgment is less than satisfactory, the direct evidence from the claimants themselves provides some support for the awards. An award of damages for future pain and suffering cannot rest solely on the evidence of past pain and suffering, however. Competent medical testimony showing both diagnosis and prognosis is necessary before the trier of fact can reasonably find that pain and suffering will continue into the future.
38
As indicated above, all of the claimants here offered expert psychiatric testimony in support of their alleged future pain and suffering, and all but two of the claimants (Mulka and Kierzek) offered expert orthopedic testimony as additional support. Since we have already held, however, that the expert psychiatric testimony was improperly admitted into evidence and can provide no basis for any of the awards, to the extent that any award was based on such expert psychiatric testimony, it must fail. Accordingly, the awards to Mulka and Kierzek, being based solely on the incompetent psychiatric testimony, must fail completely. The awards to the other five claimants must fail in part also since it is clear that they were based in part on the incompetent psychiatric testimony. However, since, as has also been stated, it is impossible to discern from the Commissioners' Opinions and Awards the extent to which those awards were grounded upon the incompetent evidence, we again refuse to substitute our judgment for that of the Commissioners and instead vacate the awards and remand for further findings and reevaluation solely on the basis of the evidence here held to be competent.
39
b. Loss of Life's Pleasures.
40
The next category of awards, those for loss of life's pleasures, is closely related to the awards for pain and suffering in that evidence offered to support a claim for loss of life's pleasures generally parallels that required to support a claim for pain and suffering. Awards in this category have on occasion been made by courts to claimants who, by reason of their injury, are deprived of the opportunity to participate in the normal activities, social, athletic or recreational, in which a person without such injury could engage. See e.g., Hanson v. Reiss Steamship Company, 184 F.Supp. 545 (D.Del.1960); Vastano v. Partownership Brovigtank, 158 F.Supp. 477 (E.D.N.Y.1957); Yates v. Dann, 124 F.Supp. 125 (D.Del.1954).
41
The Commissioners made awards in this category to each of the personal injury claimants ranging from $3,500 (to Mulka) to $65,200 (to Tulgetske). Here again the awards present the recurrent problem hampering appropriate appellate review in this case-- the virtual absence of any indication from the Commissioners of their basis for the awards. To some extent the awards may have been based on the testimony of the claimants as to their inability to engage in certain activities since the date of the accident, but a study of the record precludes any conclusion but that the awards were also based in large part upon the diagnosis offered by claimants' psychiatric expert as to each claimant of a post-traumatic anxiety neurosis.
42
An illustrative example is that of claimant Jerome Kierzek. The only item in his testimony remotely connected to any impairment of his ability to enjoy the pleasures of life was his own testimony on direct examination that, following the sinking of the Cedarville, he acquired a fear of sailing which caused him to engage in heavy drinking. While it is doubtful that such testimony could be considered a proper basis for an award, even that basis is destroyed by his own testimony on cross-examination, which established that his drinking subsided shortly after his marriage a few months after the sinking. The remainder of his testimony provides no support for finding any reduction in any of his activities, social or recreational, or any domestic difficulties which could in any way be related to the sinking. To the contrary, Kierzek's testimony showed, among other things, that he loved his wife and child, that he got along well with them, that he enjoyed going out socially with his wife (although his opportunity to do so was severely limited during his two years overseas duty in the U.S. Army), and that he had received five promotions during the course of his two year tour of army duty. Moreover, as stated above, Kierzek offered no expert medical opinion testimony of any physical disability caused by the sinking which would impair his ability to engage in the normal activities of a man of his age and situation. The only testimony in the record which even approximates a basis for the Commissioners' award to Kierzek for loss of life's pleasures appears in the incompetent as well as incredible testimony of the claimants' psychiatric expert:
43
'Q. Will (this anxiety neurosis) affect his life's pleasures? A. Yes, sir.
44
'Q. In what respect? A. In that certainly, he cannot have the usual, normal pursuit of happiness that all of us, I believe, are entitled to.
45
'Mr. Keig: I would like to strike that conclusory statement. There is not one factual thing in that.
46
'The Commissioner: I was listening for something factual, too.
47
'Maybe he could give something factual as to how he is going to be denied life's pleasures.
48
'Q. Will you answer that question, Doctor? A. Yes, sir. I don't believe that he would get the pleasure out of being with people that other people do. I don't believe that he is able to enjoy the pleasures of, say, going to a movie, bowling, organizations that many men are accustomed to. I believe that he will not be as happy in his marriage as he would be without his anxiety neurosis.'
49
As with the awards for pain and suffering, without the incompetent psychiatric opinion testimony as support, the awards for loss of life's pleasures are so grossly excessive as to be clearly erroneous. To the extent that any of the awards for loss of life's pleasures were based on the psychiatric testimony hereinabove held inadmissible, the awards must fail. A determination, however, of the validity of the awards in this group other than that to Kierzek requires a sifting and weighing of the evidence, a function more suited to the fact finder than to this court. Accordingly, we again vacate and remand for further findings and reevaluation, on the basis of the present record exclusive of the incompetent psychiatric testimony, the awards for loss of life's pleasures to each of the personal injury claimants other than Kierzek. We hold that the award to him on this account is not supported by the record as a matter of law.
50
c. Loss of Earning Capacity.
51
Two items of damages allowed to each of the personal injury claimants were for loss of earning capacity for the four year period from incident to judgment, and for the future, respectively. The awards made for the four year period may first be summarily disallowed. The Commissioners preface their determination of these awards with the abstruse statement, 'The loss of earning capacity of the surviving seamen is measured by reasonable probability based upon evidence which permits the decision-maker to arrive at a pecuniary value of the loss.' They then offer a resume of principles suggested as available for guidance in the determination of such loss, but like the quoted statement, they are without present application because the record is utterly void of evidence which would thereunder justify an award to any of the present claimants. While this further circumstance would not necessarily be fatal to the claims, the fact is that the record establishes that with the exception of Mulka who returned to college shortly after the sinking and Kierzek who entered the Army in March 1966, both of which circumstances were unrelated to the sinking, each of the claimants was compensated on a higher basis during the four year period than that under which he had been receiving compensation either immediately prior to the sinking or for the four-year period immediately prior thereto. The formula for determining the amount of an award for loss of earning capacity in this Circuit was enunciated in Imperial Oil, Ltd. v. Drlik, 234 F.2d 4, 11 (6th Cir. 1956):
52
'One who is injured in his person by the wrongful act of another may recover loss of time resulting therefrom and consequent loss of earnings, including future earnings, provided they are shown with reasonable certainty and are not merely speculative in character. The measure of damages in this field is fairly definite, and the amount awarded is controlled by what the evidence shows concerning the earning capacity of the injured person before and after the accident.'
53
The Commissioners, and thus the District Court which adopted their conclusions without independent elaboration, simply ignore this teaching of Drlik without reference thereto. Similarly, although the application of Drlik is argued in shipowners' main brief, the answering brief of the personal injury claimants (and of three of the death claimants) makes only a passing comment to another aspect of Drlik.5
54
However we express reservations concerning the averaging out period used in Drlik. During one's progress through the working years of life his income normally shows at least some annual increase, with normally no decrease except as may be occasioned by personal or economic adversity until his declining years. For such use as it may be in the remand hereinafter directed, we therefore express the view that the base should be the higher of the year immediately preceding the incident or the average of the four years preceding it, unless the tortfeasor sustains the burden of showing that the single year was high for abnormal reasons. It was for that reason that we earlier observed that these claimants had not shown a decrease in earning capacity for the four year period following the sinking when compared either to earnings immediately prior thereto or to the average of the four previous years,6 and we restate the disallowance of those awards.
55
The problems faced in connection with future earning capacity are considerably more difficult than those involved in a consideration of earning capacity for a concluded period, as in this case the four years from incident to judgment. Where a past period is involved, in the absence of an affirmative showing to the contrary, the best evidence of earning capacity is the individual's actual earning record. As to the future, the same general principle of comparison of the claimant's earning capacity with and without injury applies. As the Second Circuit has stated:
56
'The objective is to place the (claimant) in the same economic position as would have been his if the injury had not occurred. We seek to accomplish this goal by a formula which, stated in an oversimplified form, consists of determining what (claimant's) annual earning power would have been but for the injury, deducting what it will be thereafter, multiplying the result by (claimant's) (work life) expectancy, and discounting the product to present value.' Conte v. Flota Mercante Del Estado, 277 F.2d 664, 669 (2d Cir. 1960).
57
While the general formula is easily stated, its application in the evaluation of future earning capacity is less easy. However, again some principles of general application can be stated. The claimant must first establish his normal annual earning capacity, which, in the absence of evidence of special circumstances indicating an ability to rise beyond his prior level of employment, would consist of a projection of claimant's earnings history, taking into account all available data relevant to wage adjustment. Next the claimant must establish the reduction, if any, in his earning capacity proximately resulting from the injury by showing the existence of some condition which demonstrably limits his opportunities for gainful activity. See e.g., Wiles v. New York, C. & St. L.R.R., 283 F.2d 328, 331 (3rd Cir. 1960); Conte v. Flota Mercante Del Estado, supra. We gravely doubt that any such loss can be demonstrated from the record as to any of the present claimants, with the possible exception of Tulgetske and Holley, but once again it is impossible to tell from their Awards and Opinions what factual considerations motivated the Commissioners in this regard, and to what extent the emphatically articulated but inadmissible testimony of the psychiatric expert was persuasive. For this reason the awards made to all of the survivors for loss of future earnings will be vacated and remanded for further findings and reevaluation by the Commissioners.
58
d. Maintenance and Cure.
59
Awards for maintenance and cure to the date of judgment were made by the Commissioners to four of the personal injury claimants: Holley, Idalski, Przybyla and Tulgetske. The awards were calculated at the claimants' contractual rate of $8.00 per day for the 1461 days intervening between the date of the sinking and the date of judgment, less any days for which maintenance and cure had already been paid. Thus the award to each claimant was in excess of $11,000.
60
The principles of law governing an award for maintenance and cure are well settled. The law imposes a duty upon the master and owner of a vessel to provide his seamen with food and lodging if they should become sick or injured while in the ship's service. The duty begins with the inception of the disabling sickness or injury and continues until the seaman reaches maximum medical recovery. Vaughan v. Atkinson, 369 U.S. 527, 531, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962). Presumably such time would normally be when the seaman voluntarily returns to work. The duty of the shipowner extends beyond the termination of the voyage, Calmar S.S. Corporation v. Taylor, 303 U.S. 525, 528, 58 S.Ct. 651, 82 L.Ed. 993 (1938), and it is not necessarily terminated by the seaman's resumption of some gainful employment if the shipowner has in effect forced the seaman to return to work by willfully ignoring his claim for medical attention. Vaughan v. Atkinson, supra.
61
Under the facts of this case we must conclude the awards to have been improper. As with so many of the other awards for the various elements of damage, it is once again difficult, if not impossible, to determine from the Commissioners' Opinions and Awards their basis for granting maintenance and cure. The itemization of the amounts awarded to the four claimants merely contains a cryptic notation such as:
62
'He has not reached maximum medical recovery and is entitled to maintenance and cure at $8.00 per day for 1461 days.'
63
The record suggests that, at least insofar as some of the claimants are concerned, the award was based on the testimony of claimants' expert psychiatrist who stated that the claimant was in need of psychiatric treatment from the date of the accident to the date of the hearing. Of course, to the extent any of the awards for maintenance and cure were based on the psychiatric opinion testimony, which we have hereinabove held incompetent, they must fail. The validity of the awards need not rest on whether they were based on the incompetent psychiatric testimony, however, because there is no objective evidence that any of the claimants resumed gainful employment for reasons other than their voluntary determination to do so, nor is there any evidence that any of the claimants made any request for medical attention which was wilfully ignored by United States Steel.
64
'A seaman by voluntarily working at his accustomed trade rather than using maintenance and cure to speed his recovery cannot by those tactics enhance the liability of the shipowner any more than the shipowner can be permitted to minimize his liability by refusing to pay and forcing the seaman back to work.' Pyles v. American Trading and Production Corporation, 372 F.2d 611, 619 (5th Cir. 1967).
65
Accordingly the awards to Holley, Idalski, Przybyla and Tulgetske for maintenance and cure to the date of judgment are vacated.
66
e. Future Medical Services.
67
Under the heading 'Cost of Medical Services' the Commissioners awarded to each of the seven personal injury claimants amounts ranging from $1,560 (to Kierzek) to $15,600 (to Przybyla and Holley) for the stated purpose of permitting the claimants to receive weekly or bi-weekly psychiatric treatment at the rate of $30 per treatment, for periods ranging from two to five years.7 Unlike most of the other awards, the basis for the Commissioners' awards for the cost of future medical services is clear. The award to each personal injury claimant was based upon the statement of claimants' psychiatrist that the individual claimant was in need of psychiatric treatment for the period of time for which the award was made. Accordingly, in light of our holding herein that the testimony of claimants' psychiatric expert was incompetent and improperly admitted into evidence, the awards for future medical services, being based upon that testimony, must be vacated.
68
f. Recapitulation as to Personal Injury Claims.
69
As has been determined in detail above, certain items included in the judgments entered on account of the personal injuries alleged have been determined to have been erroneously included as a matter of law. Items falling in this category are the losses of earning capacity attributed to each of the seven claimants for the four year period from the date of the sinking to that of judgment, maintenance and cure allowed four claimants (Przybyla, Holley, Idalski and Tulgetske) for the four year period, future medical expenses allowed to all seven claimants, loss of future earning capacity allowed to one claimant (Mulka), and for the alleged loss of life's pleasures to one claimant (Kierzek). On the remand hereinafter ordered the District Court is instructed not to allow damages on account of any of these items. On such remand the District Court is further instructed to make further findings and reevaluate every other allowance included in the judgments entered in favor of the various claimants, each of which allowances is specifically disapproved for the reasons hereinabove set forth. Such further findings and reevaluation shall be made on the basis only of the evidence herein held to have been properly received and in accordance with the principles herein enunciated.
II. DEATH CLAIMS
70
The death claims present somewhat different issues than those which were presented in connection with the personal injury claims. With few exceptions there is no dispute about the personal representatives' entitlement to the various elements of damage necessary to compensate them for the 'deprivation of the reasonable expectation of pecuniary benefits that would have resulted from the continued life of the deceased.' Cleveland Tankers, Inc. v. Tierney, 169 F.2d 622, 624 (6th Cir. 1948). Rather, the principal issues in the death cases turn upon the appropriate method of computation of those elements of damage in order to most accurately reflect the true value of the pecuniary loss to the decedents' families. The exceptions concern the awards against both United States Steel and Den Norske for pain and suffering undergone by the decedents in connection with the circumstances of their deaths and for the loss of care and guidance to the widows, and the award applicable only against Den Norske for loss of consortium and loss of care and guidance to the adult children under the Michigan Wrongful Death Act. These issues will be separately discussed.
71
a. Loss of Earning Capacity.
72
The primary element of pecuniary loss to the families of the deceased seamen is, of course, the loss of the decedent's earning capacity, both for the interim period between the date of death and the date of judgment and for the remainder of the decedent's work-life expectancy. The basic factor of the lost earning capacity is the monetary wage which the decedent would have earned had he lived, but earning capacity may also include the value of those fringe benefits which would inure to the benefit of the decedent's family had he lived.
73
In determining earning capacity loss from the date of death to the date of judgment, the Commissioners first appropriately looked to the decedents' actual earnings prior to death and selected as a base the highest of each decedent's annual earnings for the five years prior to his death. That base figure was then increased by 4% To 5% Per year for each of the four years between the date of death and the date of judgment, such increases representing the Commissioners' views of the annual wage rate increases which the decedents would have received in each of the years from 1965 to 1969. The Commissioners then added to the total of lost earnings so computed a factor ranging from 15% To 40% Of such earnings for lost fringe benefits, and from the total of such lost wages and fringe benefits the Commissioners deducted a percentage ranging from 10% To 30%, representing the decedent's personal consumption of such earning capacity.
74
The Commissioners' computation of future earning capacity loss was similar in many respects to the computation of such loss for the four year period. The earnings base selected by the Commissioners represented an approximation of their prior estimate of each decedent's earnings for the year of judgment, i.e., 1969. That base was then multiplied by the decedent's work-life expectancy, with deductions for the decedent's personal consumption, and to the total thus reached, the fringe benefit factor of 15% To 40% Was added. A percentage of 2% To 4% Of that total was then added as representing 'personal productivity improvement and general economic growth.'
75
Issues are raised here concerning almost every step in the Commissioners' computations of earning capacity loss. Shipowners contend that the earnings base selected by the Commissioners for both the four year period and for the future was too high, that the Commissioners erred in assuming that the decedents would have received a wage rate increase of 4% To 5% For each year during the four year period and that the factors added in for fringe benefits and for 'personal productivity and general economic growth' were excessive. Shipowners also contend that the Commissioners erred in failing to make an adjustment to the awards for earning capacity losses for the value of social security and life insurance benefits payable upon the deaths of the decedents and by failing to make an adjustment for the impact of future income taxes upon such earning capacity. On the other hand, claimants contend that the deductions from the estimated lost earnings for the decedents' personal consumption was grossly excessive and that the Commissioners erred in computing the awards on the basis of work-life expectancy rather than full life expectancy, arguing that the decedents would have worked for the remainder of their full life expectancy.
76
Turning first to the question of whether the Commissioners erred in refusing to make an adjustment of their determination of earning capacity loss for the impact of social security and insurance benefits, as well as future income taxes, we hold that there was no error in the refusal to make those adjustments.
77
Social security and insurance benefits payable to the widows and minor children surviving the decedents, even though paid for in part by the decedents' employer, do not represent partial payment of the shipowners' liability for the loss to the families of the decedents' earning capacities. Rather, they represent receipt of private or governmental contract rights which became fully executed and payable upon death without regard to the cause of death, and contrary to Shipowners' assertion, refusal to allow an 'offset' for such benefits does not require them to pay twice for the same loss. See United States v. Harue Hayashi, 282 F.2d 599 (9th Cir. 1960). Shipowners' primary basis for their argument in favor of the adjustment is that the receipt of the social security and insurance benefits reduces the pecuniary loss to the survivors occasioned by reason of the deaths. Relying on the general principle of Cleveland Tankers, Inc. v. Tierney, supra, they contend that they are liable only for the pecuniary loss to the deceased seamen's surviving families. However, upon such reasoning any reduction in the pecuniary loss to the widows or children occasioned, for example, by a widow's remarriage or entry into the labor market, could likewise be justified. As the Commissioners concluded, such benefits are irrelevant to the measure of the earning capacity loss suffered by reason of the seamen's deaths for which the shipowners are liable.
78
The question of whether an adjustment for the impact of income taxes upon the award for loss of earning capacity should be made presents separate issues. Obviously, the earnings which the decedents would have received in the future had they lived, which is the theoretical basis for the award, would have had federal and other income taxes deducted, and an initially plausible argument can be made that the true reflection of future earning capacity loss must be preceded by an adjustment to the award for such taxes. However, we do not find that argument persuasive because the impact of such future taxes cannot be predicted with reasonable certainty. The infinite variations of exemptions and deductions coupled with the possibility of changes in the tax structure which could occur over the span of a decedent's life expectancy could materially alter the impact of the income tax, and any adjustment for income tax either with or without consideration of the possibilities for variation must constitute mere speculation on the part of the trier of fact. See McWeeney v. New York, N.H. & H.R.R., 282 F.2d 34 (2d Cir.), cert. denied, 364 U.S. 870, 81 S.Ct. 115, 5 L.Ed.2d 93 (1960); cf. Sleeman v. Chesapeake & Ohio R.R., 414 F.2d 305 (6th Cir. 1969). We therefore adopt the rule that no adjustment for income tax need be made 'at the lower or middle reach of the income scale.' McWeeney v. New York, N.H. & H.R.R., supra; Petition of Marina Mercante Nicaraguense, S.A., 364 F.2d 118 (2d Cir.), cert. denied, Marina Mercante Nicaraguense, S.A. v. McAllister Bros., Inc., 385 U.S. 1005, 87 S.Ct. 710, 17 L.Ed.2d 544 (1967) (The El Salvador). We further hold that each of the anticipated future individual incomes involved in this case fall within that range and that the Commissioners' refusal to make an adjustment for income taxes did not constitute error.
79
We turn next to a consideration of the fringe benefits factor by which the Commissioners increased their awards for lost earning capacity by 15 to 40 percent. As in other instances, Shipowners do not dispute the propriety of an award for fringe benefits. Rather they dispute the size of the awards and the Commissioners' failure to specify and evaluate each individual benefit included in the total. However, the record shows that both the Shipowners and the claimants submitted extensive evaluations of each of the fringe benefits which would have been received by the decedents had they lived. The mere fact that the Commissioners converted the parties' evaluations of the benefits to percentages of the decedents' estimated lost wages for purposes of computation does not render the Commissioners' awards subject to attack for lack of specificity. Insofar as the size of the awards is concerned, the record shows that in some cases there is little variation in the parties' evaluations of the fringe benefit losses, and that in no cases are the Commissioners' awards beyond the range suggested by the parties' own evaluations.8 While we might not have proceeded in the same manner had the initial decision been ours, both the percentages and the method of computation chosen by the Commissioners find support in the record, and it cannot be said that they are clearly erroneous.
80
Lastly we turn to the first element of the Commissioners' computation of earning capacity loss, i.e., the earnings base upon which such computations were made. As stated above, the Commissioners chose as their initial base for computation each decedent's highest annual earnings for the five year period prior to his death. As we have hereinabove indicated in connection with the personal injury claims, however, the base should be the higher of the year immediately preceding the incident or the average of the four years preceding it. We believe the Commissioners' selection of the highest of the decedent's annual earnings for the five years prior to death to have been clearly erroneous. Moreover, after having so selected the initial earnings base, the Commissioners assumed each decedent's gross earnings would have increased by 4% To 5% Per year for each year from the year of death to the year of judgment. The only apparent basis for such assumption on the part of the Commissioners was the testimony of expert actuaries and economists which tended generally to show that all wages tend to increase from 5% To 6% Annually as the result of increased productivity and inflation. However, in making the assumption, the Commissioners apparently ignored the documentary evidence in the record in the form of the collective bargaining agreements under which the decedents would have continued to have been employed had they lived. Those agreements showed that the annual wage increase which the hourly employees would have been entitled to receive in the four years from date of death to the date of judgment approximated 1 1/2% Per annum, not the 4% To 5% Per annum increase found by the Commissioners. Accordingly we hold that the earnings bases for the determination of earning capacity loss for both the four year period and for the future found by the Commissioners to have been clearly erroneous. In all other respects we find no error in the Commissioners' method of computation of earning capacity loss. The awards for earning capacity losses for both the four year period and for the future will be vacated and remanded for reevaluation in accordance with the foregoing.
81
b. Pain and Suffering.
82
As in the personal injury cases, the most constant item in the Commissioners' awards in the death cases was the award of $5,000 to each claimant for the pain and suffering undergone by each decedent prior to his death. Unlike the pain and suffering awards in the personal injury cases, however, the awards here present relatively uncomplicated issues upon review.
83
We note first than an award for pain and suffering is a proper element of damages in a Jones Act action for the recovery of the pecuniary loss resulting from the death of a seaman where it can be shown that the decedent experienced such suffering before his death. St. Louis, I.M. & S.R. Ry. v. Craft, 237 U.S. 648, 35 S.Ct. 704, 59 L.Ed. 1160 (1915); Cleveland Tankers, Inc. v. Tierney, supra, 169 F.2d at 626. Therefore, the issue for our determination is whether there was any evidence from which the Commissioners could reasonably find that the decedents experienced pain and suffering in connection with their deaths.
84
Shipowners do not dispute the propriety of an award for pain and suffering, but they vigorously contend that no award for pain and suffering was justified in any of the death cases here because there was no evidence of any of the circumstances surrounding the deaths of the crewmen, much less any affirmative evidence that those crewmen experienced pain and suffering at that time. We disagree. An eyewitness account of the circumstances of the deaths is not essential to such an award. Such evidence does, however, establish that some of the decedents were last observed performing their assigned duties below deck after the collision between the Cedarville and the Topdalsfjord. During this period of time the Cedarville was rapidly taking on water despite the efforts of the crew to halt it, thus permitting the inference that these decedents met their deaths by drowning in those inrushing waters while engaging in an unsuccessful struggle to save the ship. Moreover, it must be remembered that the survivors described the impact of the Cedarville and the Topdalsfjord as relatively 'soft', thus permitting the further inference that it was unlikely that any of the decedents would have been rendered unconscious prior to their final moments. Other decedents were last observed on the deck or in lifeboats but presumably were hurled into the water as the ship capsized and sank. These circumstances, too, give rise to the almost inescapable inference that those crewmen died by drowning, and nothing in those circumstances suggests that they were rendered unaware of their fate. Under such circumstances, an award for pain and suffering cannot be said to be error. See Grantham v. Quinn Menhaden Fisheries, Inc., 344 F.2d 590 (4th Cir. 1965); Petition of Marina Mercante Nicaraguense, S.A., supra, 248 F.Supp. 15, 28 (S.D.N.Y.1965) (The El Salvador); Meehan v. Central R.R., 181 F.Supp. 594, 625-626 (S.D.N.Y.1960).
85
Having thus determined that there was sufficient evidence from which the Commissioners could find that the decedents experienced pain and suffering prior to their deaths, our review with respect to this issue is closed. Despite claimants' assertion that the awards of $5,000 were adequate in light of the 'excruciating and agonizing suffering that decedents experienced' and Shipowners' implicit argument that the amount was excessive, we will not attempt to substitute our judgment for that of the Commissioners. The awards for pain and suffering in the death cases will not be disturbed.
86
c. Loss of Consortium and Loss of Counsel and Guidance to the Widows and Loss of Love, Companionship and Guidance to the Adult Emancipated Children.
87
In the course of their determinations in the death cases, the Commissioners awarded sums to the widows of the deceased seamen for the loss of their husband's counsel and guidance and also for their loss of consortium, and sums to the adult emancipated children for the value of the love, companionship and guidance which those children would have received from their decedent. The propriety of these awards is the basic issue common to all.
88
As has been noted elsewhere, the jurisdictional basis for the death claims against the defendant United States Steel was the Jones Act, 46 U.S.C. 688 (and by incorporation, the Federal Employers' Liability Act, 45 U.S.C. 51 et seq.) because the deceased crewmen were employees of United States Steel. The basis for corresponding claims against defendant Den Norske was the general maritime law as supplemented by the Michigan Wrongful Death Act (M.C.L.A. 600.2922), because of the absence of any employer-employee relationship between the decedents and Den Norske and the occurrence of the accident within the territorial waters of the State of Michigan. Under those statutes the liability of both defendants is limited to the pecuniary loss occasioned by the death of the family head, and the issue presented with respect to each of the above named items for which the Commissioners made awards is whether those items can properly be considered elements of pecuniary loss arising out of the decedents' deaths.
89
More specifically, the issue with respect to the awards for loss of counsel and guidance to the widows is whether loss of counsel and guidance is a proper element of pecuniary loss in a Jones Act action for damages by an administratrix of a deceased seaman.
90
The touchstone for any consideration of the propriety of an award in a Jones Act case for the loss of a decedent's counsel, care and guidance is Michigan Central R.R. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417 (1913). In that case, an action under the Federal Employers' Liability Act, 45 U.S.C. 51 et seq., to recover damages for the wrongful death of a railroad employee, the Supreme Court held that the trial court committed prejudicial error in permitting the jury to consider and award damages to the decedent's widow for the loss of the care and advice of her husband. After reiterating the rule that damages in an FELA action, as in a Jones Act action, are limited to the pecuniary loss incurred by reason of the decedent's death, the Court stated in relation to the charge therein that it 'threw the door open to the wildest speculation. The jury was no longer confined to a consideration of the financial benefits which might reasonably be expected from her husband in a pecuniary way.' 227 U.S. at 73, 33 S.Ct. at 197. Since the Supreme Court's decision in Michigan Central, no case arising under the Jones Act to which we have been referred by the parties or which has been disclosed by our own research has permitted an award for the loss to the widow of the decedent's care and guidance. See e.g., Petition of Marina Mercante Nicaraguense, S.A., 248 F.Supp. 15 (S.D.N.Y.1965), modified 364 F.2d 118 (2d Cir. 1966); Petition of Oskar Tiedemann & Co., 236 F.Supp. 895 (D.Del.1964); Petition of Petroleum Tankers Corporation, 204 F.Supp. 727 (S.D.N.Y.1960); Petition of Moore-McCormack Lines, Inc., 184 F.Supp. 585 (S.D.N.Y.1960), modified sub nom., Moore-McCormack Lines, Inc. v. Richardson, 295 F.2d 583 (2d Cir. 1961).
91
Notwithstanding the paucity of authority to support such an award, the claimants and the Commissioners seize upon certain language in Michigan Central to justify the awards, as follows:
92
'It is not beyond the bounds of supposition that by the death of the intestate his widow may have been deprived of some actual customary service from him, capable of measurement by some pecuniary standard, and that in some degree that service might include as elements 'care and advice.' But there was neither allegation nor evidence of such loss of service, care, or advice.' 227 U.S. at 74, 33 S.Ct. at 197.
93
Claimants contend that here there were allegations and evidence of loss of care and advice and that the awards should therefore be permitted to stand. We disagree. The entire thrust of Michigan Central is that the pecuniary loss standard of FELA and Jones Act cases requires specific evidence of both the nature of the services lost and the cost of obtaining such services elsewhere. The Court stated:
94
'The word(s) (pecuniary loss) as judicially adopted (are) not so narrow as to exclude damages for the loss of services of the husband, wife, or child, and, when the beneficiary is a child, for the loss of that care, counsel, training, and education which it might, under the evidence, have reasonably received from the parent, and which can only be supplied by the service of another for compensation.' 227 U.S. at 71, 33 S.Ct. at 196.
The Court further stated:
95
'A minor child sustains a loss from the death of a parent, and particularly of a mother, of a kind altogether different from that of a wife or husband from the death of the spouse. The loss of society and companionship, and of the acts of kindness which originate in the relation and are not in the nature of services, are not capable of being measured by any material standard. But the duty of the mother to minor children is that of nurture, and of intellectual, moral, and physical training, such as, when obtained from others, must be for financial compensation.' 227 U.S. at 73, 33 S.Ct. at 197.
96
We believe these excerpts must be read as limiting an award for loss of care and guidance to those cases in which the services of the decedent constituting such care and advice can be enumerated and their replacement value estimated. Here there was no evidence of the nature of the care, guidance or counsel which the decedents gave to their wives prior to their deaths which could 'only be supplied by the service of another for compensation,' much less any showing that any such care or counsel had any pecuniary value. Under such circumstances the award was improper and must be vacated. Cf. First National Bank in Greenwich v. National Airlines, Inc., 288 F.2d 621 (2d Cir.), cert. denied, Kessler v. National Airlines, 368 U.S. 589, 82 S.Ct. 102, 7 L.Ed.2d 57 (1961); Meehan v. Central R.R., 181 F.Supp. 594 (S.D.N.Y.1960).
97
The precise issue with respect to the Commissioners' awards for loss of consortium to the widows and for loss of love, companionship and guidance to the adult children, applied only against defendant Den Norske under the Michigan Wrongful Death Act, is whether the definition of pecuniary loss is to be governed by the principles of the general maritime law or by Michigan law interpreting that state's wrongful death statute. If the principles of general maritime law control, the awards for loss of consortium to the widows were improper because the general maritime law does not recognize that item as an element of pecuniary loss. Igneri v. Cie de Transports Oceaniques, 323 F.2d 257 (2d Cir.), cert. denied, 376 U.S. 949, 84 S.Ct. 965, 11 L.Ed.2d 969 (1964); Simpson v. Knut Knutsen, O.A.S., 296 F.Supp. 1308 (N.D.Cal.1969); Valitutto v. D/S I/D Garonne, 295 F.Supp. 764 (S.D.N.Y.1969). But Michigan courts construing that state's wrongful death statute have permitted awards to widows for loss of consortium (e.g., Montgomery v. Stephan, 359 Mich. 33, 101 N.W.2d 227 (1960)).9
98
While the question is one of first impression in this Court, we believe that under recent developments in the law the entire proceedings against Den Norske, including the measure of damages, are governed by the principles of maritime law.
99
The Commissioners' determination to apply Michigan law to the question of the measure of damages applicable to Den Norske appears to have resulted from their misplaced reliance upon certain language in Michigan Central v. Vreeland, supra, but that determination had some basis in light of the then existing state of the law. Prior to its decision in Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), the Supreme Court had uniformly held that there was no liability for wrongful death under the general maritime law, and that absent a statutory right thereto, there could be no recovery by the next of kin of a decedent killed as the result of a maritime tort. Such was the rule of The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886), but its venerable teaching was specifically overruled by Moragne v. States Marine Lines, supra. Long before the overruling of The Harrisburg, the stringency of its rule denying recovery for wrongful death in admiralty under the maritime law led to the creation of exceptions to that rule. One of the judicially created exceptions to the stringent rule of The Harrisburg was that 'where death * * * results from a maritime tort committed on navigable waters within a state whose statutes give a right of action on account of death by wrongful act, the admiralty courts will entertain a libel in personam for the damages sustained by those to whom such right is given.' Western Fuel Co. v. Garcia, 257 U.S. 233, 242, 42 S.Ct. 89, 90, 66 L.Ed. 210 (1921).
100
The development and application of this exception to the general rule denying recovery inevitably led to questions of the appropriate substantive law to be applied where recovery was sought in one jurisdiction under a right created by another jurisdiction. In response, the courts fashioned a test of looking to the origin of the right sought to be enforced, holding that the court was bound to apply the law of the jurisdiction in which the right originated. See The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524 (1959); Garrett v. Moore-McCormack, 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239 (1942); Curtis v. A. Garcia Y Cia, 241 F.2d 30 (3rd Cir. 1957). While it does not appear that the Commissioners engaged in such a reasoning process in making their determination, application of the test set forth above could lead to the result that the measure of damages applicable against Den Norske was to be governed by the Michigan courts' interpretation of the Michigan Wrongful Death Act since, prior to Moragne v. States Marine Lines, supra, the claimants' right to recovery against Den Norske was rooted in that statute.
101
The decision of the Supreme Court in Moragne v. States Marine Lines, supra, which held that an action does lie under the general maritime law for wrongful death caused by a maritime tort, changes that result. Creation of a right of recovery for wrongful death under the maritime law eliminates the need for both the exception to the rule denying recovery and for the tests designed to implement that exception and permits all facets of that right of recovery, including the measure of damages, to be governed by the principles of the maritime law. We therefore hold the awards for loss of consortium to the widows and for loss of love, companionship and guidance to the adult children, applicable only against Den Norske, to have been error. In so holding we recognize that in the proceedings below liability against Den Norske was premised upon the Michigan Wrongful Death Act. However, liability had never been in issue in this case, so the Supreme Court's creation of an additional or alternative basis for Den Norske's liability to the death claimants is of little importance compared to the pervasive issue with respect to all claims, i.e., the appropriate measure of damages. Recognition of a right of recovery for wrongful death under the general maritime law strongly dictates that in order to promote the uniformity and supremacy of the maritime law (See Kossick v. United Fruit Co., 365 U.S. 731, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961); Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917)), the measure of recovery must be governed by the principles of that law where, as here, there is a conflict between the damages recoverable under the general maritime law (Igneri v. Cie de Transports Oceaniques, supra; Simpson v. Knut Knutsen, O.A.S., supra; Valitutto v. D/S I/D Garonne, supra) and those recoverable under state law (Montgomery v. Stephan, supra). Accordingly, upon the remand hereinafter ordered, the District Court is instructed not to allow damages to any claimants with respect to either loss of consortium to the widows or loss of love, companionship and guidance to the adult emancipated children.
102
d. The Awards of Prejudgment Interest and the Failure to Discount Future Damage Awards to Present Value.
103
The two remaining significant issues can be quickly disposed of since they represent instances of the Commissioners' clear disregard of well established law of this Circuit.
104
In each of the death cases the Commissioners awarded prejudgment interest for the total dollar value of the awards from the date of death to the date of judgment. Such an award of prejudgment interest was error. Cleveland Tankers, Inc. v. Tierney, 169 F.2d 622 (6th Cir. 1948).
105
The second issue concerns the Commissioners' failure to discount to present value the awards for future damages in all of the cases. The Commissioners' refusal to include in their computation of damages a reduction of future damages to present value was based upon their assumption that inflationary trends resulting in a loss in the purchasing power of the dollar by 4% Per annum would offset any reduction to present worth at 4% Simple interest. This was error. It is well settled that an award for future damages must be reduced to present value in order to take into account the earning power of that money. Chesapeake & Ohio Ry. v. Kelly,241 U.S. 485, 491, 36 S.Ct. 630, 60 L.Ed. 1117 (1916). It is equally well settled in this Circuit that the prospect of a future decline in the purchasing power of the dollar may not be used to offset the reduction to present value. Sleeman v. Chesapeake & Ohio Ry., 414 F.2d 305 (6th Cir. 1969).10
106
Accordingly, in conjunction with the remand hereinabove directed, the District Court is directed to discount to present value all awards for future damages in accordance with generally accepted actuarial principles.11
107
e. Recapitulation as to Death Claims.
108
Items in the death claims which we have hereinabove determined were erroneously included in the awards as a matter of law are the awards to the widows for the loss of consortium and for the loss of their decedent's counsel, care and guidance, the awards to the adult, emancipated children for loss of love, companionship and guidance and the award of prejudgment interest on the total value of the awards for the interim period between the date of death and the date of judgment. On remand the District Court is instructed not to allow damages on account of these items. On such remand the District Court is further instructed to reevaluate and recompute the earnings capacity loss of each death claimant in accordance with the principles herein enunciated, specific reference being to the determination of the proper earnings base for the computation of such earning capacity loss. The District Court is further instructed to discount to present value that portion of the award to each death claimant representing future damages in accordance with the principles herein enunciated. (Such instruction also has application to the personal injury claims; the District Court is similarly instructed to discount to present value that portion of the award to each personal injury claimant representing future damages.) In all other respects, no error is found to have intervened in the determination of damages in the death claims.
109
III. CONCLUSION.
110
The judgments of the District Court are vacated, and the causes are remanded for further proceedings consistent with the foregoing.
1
Den Norske's petition was filed in the District Court for the Northern District of Illinois, Eastern Division, but was subsequently transferred to the Northern District of Ohio, Eastern Division, wherein the United States Steel Petition was originally filed
2
We are aware of Shipowners' dissatisfaction with that statement, and we do not by this reference adopt it
3
The only matter in the record remotely touching on this issue are the arguments of counsel at the time the objection to the admission of the psychiatric opinion testimony was made:
'Mr. Keig (Attorney for Den Norske): Doctor, excuse me. I would like to object to the doctor testifying as to the history he took from this man. The law is clear that examining physicians may not state the history and that their opinion must be based upon evidence otherwise adduced.
'The Commissioner: I think that a history is proper at this time. If he is the treating doctor and saw him on February 25th, 1967, obviously for the purpose of treatment, or as an analyst, or for the purpose of testifying as an expert, I think he can testify as to that.
'Mr. Keig: Mr. Commissioner, that is exactly the point, and you are right. The thing here is he did not see him for treatment, but solely for examination for the purpose of testifying, and that forms the foundation for our objection, because the law is clear that in those cases he may not read his history.
'The Commissioner: Mr. Freedman. (Attorney for Claimants)
'Mr. Freedman: I don't offer the history which he obtained from the client as the truth of those statements. I offer them, as you said before-- and this is consistent with the law, too. As a matter of fact, the law is universal on this point, that for the purpose of his making a diagnosis and drawing any kind of a conclusion, he needs to have the history, and to that extent it is very relevant.'
Whereupon the objection was overruled and the doctor proceeded to testify as outlined above, diagnosing the psychic disturbances of the claimants on the basis of the history and subjective symptoms related to him by the claimants.
4
An explanation for this distinction may be found in the fact that, according to the Commissioners' Awards and Opinions, Commissioner Grogan 'assumed specific responsibility' for the awards in the Idalski and Tulgetske claims, while Commissioner Schroeder 'assumed specific responsibility' for all of the other claims
5
One brief filed in connection with one of the death claims inferentially attempts to discredit Drlik by arguing that it adopted the rule from two Second Circuit cases (Porello v. United States, 153 F.2d 605 (1946) and Carroll v. United States, 133 F.2d 690 (1943)), and then contending that these cases were subsequently overruled by LeRoy v. Sabena Belgian World Airlines, 344 F.2d 266 (2d Cir. 1965). However, LeRoy is distinguishable on its facts and is entirely without present application. It is further argued that Petition of Marina Mercante Nicaraguense, S.A., 248 F.Supp. 15 (S.D.N.Y., 1965), modified 364 F.2d 118 (2d Cir. 1966) (The El Salvador) reaffirmed the Second Circuit's rejection of Drlik's 'averaging out' theory, but The El Salvador used the year prior to death as the base for awards, noting that these earnings were 'consistent with * * * previous earning record(s)', and its conclusions are in no way inconsistent with those reached herein. The next year the Second Circuit in Candiano v. Moore-McCormack Lines, Inc., 382 F.2d 961 (2d Cir. 1967), affirming the decision reported at 251 F.Supp. 654 (S.D.N.Y. 1966) approved the establishment of a claimant's earning capacity by averaging his earnings for the six years preceding the accident
6
In Drlik, to determine lost earning capacity this Court used as a base the average of the plaintiff's earnings for the four year period immediately prior to the accident
7
The award to Kierzek was an exception to the other awards. His award for future medical services was for the purpose of enabling him to pay weekly visits to a general practitioner rather than seeking psychiatric treatment because of his stated fear of psychiatrists
8
Claimants' Defendant's Commissioners'
Percentage of Percentage of Percentage of
Fringe Benefits Fringe Benefits Fringe Benefits
to Earnings to Earnings to Earnings
Loss Loss Loss
--------------- --------------- ---------------
Lamp 22% 19% 20%
Cook 20% 20% 20%
Fuhrman 16% 11% 15%
Haske 22% 10% 15%
Jones 62% 32% 40%
9
The awards to the adult emancipated children for loss of love, companionship and guidance need no further discussion as it is now clear that such an award is not an element of pecuniary loss under the Michigan Wrongful Death Act (Breckon v. Franklin Fuel Co., 383 Mich. 251, 174 N.W.2d 836 (1970), and there is no contention that such an award is a proper element of damage under the general maritime law
10
In an attempt to salvage the Commissioners' determination that an offset was justified, claimants contend that the failure to discount to present value would be more than offset by future wage rate increases which they contend the Commissioners ignored. There is no competent evidence in the record to support this contention
11
We recognize that the determination of the discount rate to be applied to an award for future damages rests within the sound discretion of the District Court. While we have serious reservations about a discount rate at 4% In light of the available return on investments today, we cannot say that the Commissioners' selection of 4% Was an abuse of discretion. However, as pointed out above, such rate should be compounded in accordance with generally accepted actuarial principles | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/867617/ | Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303
K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
MUNICIPALITY OF ANCHORAGE )
and NOVAPRO RISK SOLUTIONS, ) Supreme Court Nos. S-14621/14622
Adjuster, ) (Consolidated)
)
Petitioners, ) Alaska Workers’ Compensation
) Appeals Commission No. 11-017
v. )
) OPINION
JOHN E. ADAMSON, )
) No. 6780 - May 3, 2013
Respondent. )
)
)
CALLI E. OLSEN, )
) Alaska Workers’ Compensation
Petitioner, ) Appeals Commission No. 12-001
)
v. )
)
CITY & BOROUGH OF )
JUNEAU, )
)
Respondent. )
)
Petition for Review in File No. S-14621 from the Alaska
Workers’ Compensation Appeals Commission, Rebecca C.
Pauli, Chair pro tem. Petition for Review in File No. S-14622
from the Alaska Workers’ Compensation Appeals
Commission, Laurence Keyes, Chair.
Appearances: Trena L. Heikes, Assistant Municipal
Attorney, and Denise A. Wheeler, Municipal Attorney,
Anchorage, for Petitioners Municipality of Anchorage and
NovaPro Risk Solutions. Eric Croft, The Croft Law Office,
Anchorage, for Respondent Adamson. Joseph A.
Kalamarides, Kalamarides & Lambert, Anchorage, for
Petitioner Olsen. Richard L. Wagg, Russell, Wagg, Gabbert
& Budzinski, P.C., Anchorage, for Respondent City and
Borough of Juneau.
Before: Fabe, Chief Justice, Carpeneti, Winfree, and
Stowers, Justices. [Maassen, Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
What standard should apply to stays on appeal of future medical benefits
when the Alaska Workers’ Compensation Board has ordered an employer to pay for
medical treatment or benefits? In these two cases the Alaska Workers’ Compensation
Appeals Commission applied different standards to evaluate motions to stay future
medical benefits, and the losing party in each case petitioned for review of the
Commission’s stay decision. We granted review to decide what standard applies to stays
of future medical benefits. We hold that to stay future medical benefits, the employer
must show the existence of the probability that the appeal will be decided adversely to
the compensation recipient.
II. FACTS AND PROCEEDINGS
A. Municipality of Anchorage v. Adamson
John Adamson worked as a firefighter for the Municipality of Anchorage
for more than 20 years, retiring in 2011. He was diagnosed with prostate cancer on
August 7, 2008, and applied for workers’ compensation benefits for the cancer.
Adamson’s application was based on AS 23.30.121, which establishes a special
-2- 6780
presumption analysis in workers’ compensation cases for firefighters who develop certain
cancers; the statute became effective on August 19, 2008. The Municipality raised a
number of procedural defenses to Adamson’s claim as well as a constitutional challenge
to the firefighter presumption statute.
After a hearing the Alaska Workers’ Compensation Board decided that
Adamson’s cancer was compensable and ordered the Municipality to pay past and future
medical benefits, some past temporary total disability (TTD) benefits, and costs and
attorney’s fees. The Board did not consider whether Adamson was eligible for
permanent partial impairment (PPI) at that time because Adamson had neither been
evaluated nor included a claim for it.1 One Board member dissented and would have
found the claim not compensable.
The Municipality appealed the decision to the Alaska Workers’
Compensation Appeals Commission and asked for a stay of the Board’s decision. The
Municipality explained that “future periodic medical expenses [might] be incurred” while
the appeal was pending, and argued that these benefits should be stayed under the
probability of success on the merits standard. Adamson agreed to stay past benefits, but
he did not want to stay future medical benefits, including a biannual examination. He
argued that he, not the Municipality, would likely prevail on the merits.
The Commission refused to stay future benefits. It found that the
Municipality would suffer “irreparable harm” because it would have no way to recoup
benefits paid if it prevailed on appeal. And the Commission further decided that the
Municipality had raised serious and substantial questions going to the merits of the case.
But the Commission refused to stay future benefits because the Municipality had not
1
At oral argument before us, the Municipality said that Adamson has since
received an award of PPI. The Municipality did not say whether it had appealed this
decision or asked the Commission for a stay of PPI awarded by the Board.
-3- 6780
shown that “it [was] more likely than not that the [Municipality would] prevail on the
merits.” The Commission cited AS 23.30.125(c) as the source of law for the stay
standard. The Municipality petitioned for review of the denial of the stay.
B. Olsen v. City & Borough of Juneau
Calli Olsen worked as a wastewater utility operator for the City and
Borough of Juneau (CBJ). According to the Board’s decision in her case, she filed
reports of injury for two different injuries, one to her right knee in May 2009 and one to
her lower back and right leg in September 2009. After a hearing the Board found that her
knee injury, but not her back and leg injury, was compensable, and it ordered CBJ to pay
for completion of a specific medical treatment (autologous chondrocyte implantation) as
well as past medical care related to the right knee.2 The Board denied other claims she
made and deferred ruling on PPI because she was not yet medically stable.
CBJ appealed to the Commission and asked for a stay of future medical
benefits. CBJ’s motion for stay argued that it was probable that the merits of the appeal
would be decided adversely to Olsen. CBJ contended that because Olsen’s claim was an
aggravation claim and because the statutory standard had changed from “a substantial
factor” to “the substantial cause,” the Board had evaluated the claim using the incorrect
standard. Olsen countered that the Board had properly evaluated the claim. In an
affidavit filed with her opposition, Olsen stated that she had undergone the first part of
2
Autologous chondrocyte implantation is a two-part medical procedure in
which a small amount of cartilage is first removed from the knee in an arthroscopic
procedure. The tissue is sent to a lab, which grows more of the patient’s cells. The lab
initially freezes the tissue and does not begin the culturing process until after “all the
paperwork for insurance has been done.” After growing a sufficient number of cells, the
lab ships them back for implantation in the patient. The second surgery is an open
procedure in which the cells are placed under a membrane patch. According to Olsen’s
surgeon, the procedure is generally successful and avoids the need for knee replacement
surgery. Olsen had completed the first part of the procedure before the Board hearing.
-4- 6780
the implantation procedure in June 2010 and had no funds to pay for the second surgery;
she further stated that she was “not able to find suitable work in [her] field due to [her]
injury.”3
At the hearing on the stay, the Commission directed the parties to address
which regulatory standard for a stay applied. At the time of the hearing, the
Commission’s regulation about stays on appeal contained two standards depending on
the type of benefit at issue. To stay “continuing future periodic compensation payments”
the appellant was required to demonstrate irreparable damage and “the existence of the
probability that the merits of the appeal [would] be decided adversely to the
compensation recipient”; for “lump-sum payments” the appellant had to show irreparable
damage and “the existence of serious and substantial questions going to the merits of the
case.”4
CBJ said it would suffer irreparable damage without the stay because it
would have no way to recoup the payments if it were to win on appeal. CBJ argued that
the benefits at issue were not continuing future periodic compensation payments, so the
serious and substantial question standard should apply. Olsen argued that CBJ was
required to show a probability of success on the merits; she told the Commission that no
case had expressly decided whether future medical benefits were “continuing future
periodic compensation payments.”
The Commission granted the stay, using the serious and substantial question
test to evaluate the request. The Commission found that CBJ had no way of recovering
payment for the medical treatment if CBJ won the appeal, and it decided that CBJ had
3
Olsen was still working for CBJ at the time of the first surgery, but the
workers’ compensation carrier did not pay for it. Her employment with CBJ ended in
July 2010.
4
8 Alaska Administrative Code (AAC) 57.100(d)-(e) (am. 3/24/12).
-5- 6780
raised a serious and substantial question, specifically how “the statutory standard for
compensability . . . requiring that employment be the substantial cause of the need for
medical treatment . . . appl[ied] in the context of [Olsen’s] case.” The Commission did
not consider whether CBJ had shown the existence of the probability the merits of the
appeal would be decided adversely to Olsen.
Olsen then moved for reconsideration, arguing that the probability of
success on the merits was the appropriate standard. She further contended that medical
benefits could not be stayed at all if the Commission interpreted “compensation” as
excluding medical benefits. The Commission responded to Olsen’s motion by explaining
that it interpreted AS 23.30.125(c) as “restating the criterion in Olsen [Logging Co. v.
Lawson5] for stays of ongoing periodic disability payments on which an employee relies
as a salary substitute.” The Commission also quoted the standard for lump sum
payments from Olsen Logging and said that whether Olsen’s implantation procedure
would be paid incrementally or [as] a lump sum was not the
critical consideration . . . . The compensation is clearly not
ongoing periodic disability payments on which Olsen would
rely as a salary substitute. . . . [T]he compensation, in terms
of the language in AS 23.30.125(c), is not continuing future
periodic compensation payments.
Olsen petitioned for review of the stay decision.
We granted review of both petitions and consolidated the cases for oral
argument and decision.
III. STANDARD OF REVIEW
We interpret statutes “according to reason, practicality, and common sense,
considering the meaning of the statute’s language, its legislative history, and its
5
832 P.2d 174 (Alaska 1992).
-6- 6780
purpose.”6 When interpreting a statute, “we adopt ‘the rule of law that is most persuasive
in light of precedent, reason, and policy.’ ”7 We apply our independent judgment to
questions of law that do not involve agency expertise.8 If the issue involves agency
expertise or fundamental policy questions, we apply the reasonable basis standard of
review and “defer to the agency if its interpretation is reasonable.”9 But when the issue
is one of “statutory interpretation requiring the application and analysis of various canons
of statutory construction,” as it is here, we apply our independent judgment.10
IV. DISCUSSION
Future Periodic Compensation Payments Can Include Medical Benefits.
A. The Language Of AS 23.30.125(c)
These two petitions require us to construe AS 23.30.125(c), which the
legislature repealed and reenacted in 2005 as part of the legislation creating the
6
Parson v. State, Dep’t of Revenue, Alaska Hous. Fin. Corp., 189 P.3d 1032,
1036 (Alaska 2008) (citing Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003)).
7
Lewis-Walunga v. Municipality of Anchorage, 249 P.3d 1063, 1067 (Alaska
2011) (quoting L.D.G., Inc. v. Brown, 211 P.3d 1110, 1133 (Alaska 2009)).
8
Marathon Oil Co. v. State, Dep’t of Natural Res., 254 P.3d 1078, 1082
(Alaska 2011) (quoting Matanuska-Susitna Borough v. Hammond, 726 P.2d 166, 175
(Alaska 1986)).
9
DeNuptiis v. Unocal Corp., 63 P.3d 272, 277 (Alaska 2003) (citing
O’Callaghan v. Rue, 996 P.2d 88, 94 (Alaska 2000); Lakosh v. Alaska Dep’t of Envtl.
Conservation, 49 P.3d 1111 (Alaska 2002)).
10
Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903-04
(Alaska 1987); see also Alaska Pub. Offices Comm’n v. Stevens, 205 P.3d 321, 324
(Alaska 2009) (“When reviewing an agency decision involving statutory interpretation
and determination of legislative intent, we apply the substitution of judgment standard.”).
-7- 6780
Commission.11 The statute currently provides, in pertinent part:
The payment of the amounts required by an award may not be
stayed pending a final decision in the proceeding unless, upon
application for a stay, the commission, on hearing, after not
less than three days’ notice to the parties in interest, allows
the stay of payment, in whole or in part, where the party filing
the application would otherwise suffer irreparable damage.
Continuing future periodic compensation payments may not
be stayed without a showing by the appellant of irreparable
damage and the existence of the probability of the merits of
the appeal being decided adversely to the recipient of the
compensation payments. The order of the commission
allowing a stay must contain a specific finding, based upon
evidence submitted to the commission and identified by
reference to the evidence, that irreparable damage would
result to the party applying for a stay and specifying the
nature of the damage.
Among the changes the legislature made to AS 23.30.125(c) in 2005 was
the addition of the second sentence in the text quoted above: “Continuing future periodic
compensation payments may not be stayed without a showing by the appellant of
irreparable damage and the existence of the probability of the merits of the appeal being
decided adversely to the recipient of the compensation payments.”12 This sentence is
11
Ch. 10, § 40, FSSLA 2005.
12
Former AS 23.30.125(c) (1990) provided:
The payment of the amounts required by an award may not be
stayed pending final decision in the proceeding unless upon
application for an interlocutory injunction the court on
hearing, after not less than three days’ notice to the parties in
interest and the board, allows the stay of payment, in whole
on in part, where irreparable damage would otherwise ensue
to the employer. The order of the court allowing a stay shall
contain a specific finding, based upon evidence submitted to
(continued...)
-8- 6780
similar, but not identical, to language in Olsen Logging Co. v. Lawson, where we
interpreted former AS 23.30.125(c) as incorporating the balance of hardships standard
used in preliminary injunctions.13 In Olsen Logging we looked at the balance of
hardships to employers and employees in stays of disability benefits and decided that the
balance of hardships “would almost invariably result in application of the ‘probability
of success on the merits’ standard when the award consists of ongoing periodic disability
payments on which an employee relies as a salary substitute.”14 In contrast, we decided
that “the lesser ‘serious and substantial questions’ standard [should] be used where a
lump sum award is sought to be stayed” because an employer will often have limited or
nonexistent means to recover the money paid if it wins the appeal and the employee is
“usually not dependent on lump sum awards for his daily living expenses.”15 Our
decision in Olsen Logging established a two-tier system for evaluating stays of disability
benefits in workers’ compensation cases, but it did not consider medical benefits. Before
the legislature amended AS 23.30.125, we had not been presented with the question of
which standard applied to stays of awards of future medical benefits.
12
(...continued)
the court and identified by reference to it, that irreparable
damage would result to the employer, and specifying the
nature of the damage.
13
832 P.2d 174, 175-76 (Alaska 1992).
14
Id. at 176.
15
Id.
-9- 6780
B. The Commission’s Interpretation Of AS 23.30.125(c)
In the time since AS 23.30.125(c) was amended, the Commission has
interpreted the statute in a number of ways.16 For purposes of evaluating stays of future
medical benefits, the Commission has at times engaged in a detailed weighing of the
balance of hardships to the parties, looking at a number of factors before deciding the
issue.17 In Adamson’s case, there was apparently no dispute before the Commission that
the probability of success on the merits was the applicable standard. In Olsen’s case, the
Commission interpreted the legislature’s addition of the sentence about continuing future
periodic compensation payments as signaling a legislative intent to apply the probability
of success on the merits only to ongoing disability payments that the employee used as
a salary substitute. In arriving at this decision, the Commission did not examine the
meaning of the words contained in the phrase “continuing future periodic compensation
payments” and did not discuss the legislative history or purpose of the statute. Instead,
it interpreted the phrase “as restating the criterion in Olsen [Logging] for stays of ongoing
periodic disability payments on which an employee relies as a salary substitute.”
Because the Commission did not consider medical benefits to be “ongoing periodic
disability payments on which Olsen would rely as a salary substitute,” it decided that the
medical benefits, “in terms of the language in AS 23.30.125(c), [were] not continuing
future periodic compensation payments.”
16
In addition to the decisions it has made about stays, it has promulgated a
regulation about stays, which it has modified several times. The most recent change in
the regulation became effective in March 2012, after these cases were decided. 8 AAC
57.100, am. 3/24/12, Register 201.
17
See Anchorage Sch. Dist. v. Delkettie, AWCAC Dec. No. 022 at 9 (Oct. 19,
2006) (refusing to stay payment of future medication copayments because employer
could recover money); S&W Radiator Shop v. Flynn, AWCAC Decision No. 005 at 5
(Feb. 24, 2006) (evaluating balance of hardships using factors including delay in
treatment and ability of employer to recover payment).
-10- 6780
C. “Continuing Future Periodic Compensation Payments”
Central to resolution of these cases, then, is the meaning of the phrase
“continuing future periodic compensation payments.”18 “We interpret statutes according
to reason, practicality, and common sense, considering the meaning of the statute’s
language, its legislative history, and its purpose.”19 Words in statutes are construed using
their common meanings unless they have “acquired a peculiar meaning, by virtue of
statutory definition or judicial construction.”20
Of the words in the phrase “continuing future periodic compensation
payments,” only “compensation” is defined in the workers’ compensation act.21 We have
also interpreted the term “compensation” to include medical benefits in most instances;
as we stated in Childs v. Copper Valley Electric Ass’n, we “generally construe
‘compensation’ to include medical benefits, [but] we occasionally will reach the opposite
result if statutory language strongly suggests a narrower reading.”22 The Commission
acknowledged that medical benefits are compensation when it said that the Board
“awarded Olsen compensation in the form of future medical benefits.” No party disputes
that the medical benefits awarded in these cases are “compensation” for purposes of a
18
The parties raised and discussed the additional issue of whether the
legislature intended to alter the two-tier analysis in Olsen Logging, particularly the
standard for stays of lump-sum awards, through the addition of the sentence about stays
of continuing future periodic compensation payments. Because Olsen Logging did not
address medical benefits, we do not need to decide this issue.
19
Pestrikoff v. Hoff, 278 P.3d 281, 283 (Alaska 2012) (citing In re Estate of
Maldonado, 117 P.3d 720, 725 (Alaska 2005)).
20
State v. Jeffery, 170 P.3d 226, 232 (Alaska 2007) (quoting Div. of Elections
v. Johnstone, 669 P.2d 537, 539 (Alaska 1983)) (internal quotation marks omitted).
21
AS 23.30.395(12).
22
860 P.2d 1184, 1192 (Alaska 1993) (citations omitted).
-11 6780
stay, and nothing in the statutory language suggests that the legislature intended to treat
medical benefits differently from other compensation in this statutory subsection.23
Subsection .125(c) permits the Commission to set aside a “compensation order,” which
is a Board order deciding a workers’ compensation claim.24 Because a claim can include
a request for medical benefits, a compensation order can also include medical benefits,
as these two cases illustrate. As a result “compensation” in “continuing future periodic
compensation payments” includes medical benefits.25
The parties here dispute the meaning of “continuing” and “periodic.” The
Municipality argues that medical benefits do not fit the definition of “continuing.”
Adamson responds that payments for his examinations are unquestionably continuing.
The Municipality’s argument that medical benefits are not continuing is based on the idea
that each separate doctor visit or procedure is a discrete event that renews the employer’s
obligation; it does not consider a course of medical treatment that may extend over a long
period of time and encompass a number of visits.
“Continue” has several meanings:
1. To go on with a particular action or in a particular
condition: PERSIST . 2. To exist over an extended period:
23
The legislature used the phrase “continuing future periodic compensation
payments” rather than “ongoing periodic disability payments,” as we did in Olsen
Logging Co. v. Lawson, 832 P.2d 174, 176 (Alaska 1992).
24
AS 23.30.110(e).
25
See Jonathan v. Doyon Drilling, Inc., 890 P.2d 1121, 1123 (Alaska 1995)
(“There is a presumption that the same words used twice in the same act have the same
meaning.” (quoting Kulawik v. ERA Jet Alaska, 820 P.2d 627, 634 (Alaska 1991))
(internal quotation marks omitted)).
-12- 6780
LAST .3. To remain in the same state, capacity, or place. 4.
To go on after an interruption: RESUME .[26]
Black’s Law Dictionary has two definitions of “continuing,” both of which are similar
to general usage: “1. Uninterrupted; persisting . 2. Not requiring
renewal; enduring .”27 The medical
benefits at issue in both of these cases fall within a definition of “continuing.” The
treatment the Board ordered for Olsen would have completed (or gone on with) the first
procedure. Adamson’s medical care will persist over an extended period of time.
Medical benefits generally meet the definition of “continuing”: An employer may be
required to provide medical benefits over an extended period of time to ensure that the
worker completes the process of recovery.28
We turn now to the meaning of “periodic payment.” The Municipality
contends that the definition of the term “periodic payment” shows that medical benefits
are not “periodic compensation payments.” “Periodic payment” is defined as “[o]ne of
a series of payments made over time instead of a one-time payment for the full amount”;
it is contrasted with “lump-sum payment,” which is defined as “[a] payment of a large
amount all at once, as opposed to a series of smaller payments over time.” 29 The
Municipality asserts that “medical benefits are paid as a ‘one time payment for the full
amount’ due and are incurred on an intermittent, irregular basis.” But this depends on
how one views medical benefits. Each doctor visit or procedure may be paid in full when
the bill is presented, but an employer is responsible, at least initially, for the full course
26
W EBSTER ’S II NEW COLLEGE DICTIONARY 250 (3d ed. 2005).
27
BLACK ’S LAW DICTIONARY 363-64 (9th ed. 2009).
28
See AS 23.30.095(a) (requiring employer to provide medical treatment for
up to two years depending on nature of injury).
29
BLACK ’S LAW DICTIONARY 1244 (9th ed. 2009).
-13- 6780
of medical treatment the worker needs to recover from injury.30 Payment for the course
of treatment is not usually made as a lump sum, particularly when a worker must see
specialists on referral to receive appropriate treatment.
The parties here focus their arguments on the meaning of “periodic.” CBJ
and the Municipality rely on a definition of “periodic” that is limited to regular intervals.
Adamson counters that “periodic” can also mean “recurring intermittently.” “Periodic”
has several dictionary meanings, two of which are relevant here: “Occurring or appearing
at regular intervals” and “[t]aking place now and then: INTERMITTENT .”31 Because either meaning is plausible, we conclude that the statute is
ambiguous.
D. Legislative Purpose And History
When statutory language is ambiguous, we look to the purpose of the
legislation and the legislative history for indications of legislative intent.32 Legislative
intent does not clarify how the phrase “continuing future periodic compensation
payments” should be interpreted. The legislature intended that the workers’
compensation statute “be interpreted so as to ensure the quick, efficient, fair, and
predictable delivery of indemnity and medical benefits to injured workers at a reasonable
cost to the employers who are subject to [it].”33 Interpreting “continuing future periodic
compensation payments” to include future medical benefits is consistent with ensuring
30
AS 23.30.095(a).
31
W EBSTER ’S II NEW COLLEGE DICTIONARY 838 (3d ed. 2005).
32
Alyeska Pipeline Serv. Co. v. DeShong, 77 P.3d 1227, 1234 (Alaska 2003).
33
AS 23.30.001(1).
-14- 6780
the quick and predictable delivery of benefits to injured workers, but it could be costly
to employers because of their limited means to recover payments if they win on appeal.34
There is very little legislative history specifically about the stay standard.
As Adamson points out, the amendment to AS 23.30.125(c) was part of a package of
amendments related to creation of the Commission. The only versions of the bill that
amended AS 23.30.125(c) were those versions that included establishment of the
Commission.35 The governor, who sponsored the legislation, indicated in his transmittal
letter that one reason he proposed the bill was to “address medical costs” in the workers’
compensation system by reviewing the system and proposing solutions.36 But the letter
did not suggest a desire to change the process for appealing a Board decision beyond
creating a commission whose decisions would be precedential and speedy.37
The parties only mention one specific reference to the stay standard in the
legislative history: The Department of Law, comparing versions of the bill for the Free
Conference Committee, said the amendment to AS 23.30.125 “[p]ermits [the]
commission to issue a stay, but continuing future payments may not be stayed without
a showing by the appellant of irreparable harm and the existence of the probability of the
merits being decided adversely to the compensation recipient. (current case law
standard).” This small piece of legislative history does not illuminate whether the
34
See Croft v. Pan Alaska Trucking, Inc., 820 P.2d 1064, 1066-67 (Alaska
1991) (holding that AS 23.30.155(j) is exclusive means to recover overpayments of
compensation).
35
Compare S.B. 130, C.S.S.B. 130(FIN) am, C.C.S. S.B. 130, C.C.S. S.B. 130
(fld H), F.C.C.S. S.B. 130, and F.C.C.S. S.B. 130 (efd pfld H), with C.S.S.B. 130(L&C),
C.S.S.B. 130(JUD), C.S.S.B. 130(FIN), H.C.S. C.S.S.B. 130(L&C), H.C.S. C.S.S.B.
130(JUD) and H.C.S. C.S.S.B. 130(JUD) am H.
36
2005 Senate Journal 466.
37
Id. at 465-68.
-15- 6780
legislature intended “continuing future periodic compensation payments” to include
future medical benefits because there was no case law standard for future medical
benefits.
E. Precedent, Reason, And Policy
Because AS 23.30.125(c) is ambiguous and because of the paucity of
legislative history, we construe “continuing future periodic compensation payments” “so
as to adopt [the] rule of law that is most persuasive in light of precedent, reason, and
policy.”38 Although we agree with the Municipality that “pertinent court decisions may
be consulted in the interpretation of statutes which restate decisional law,” we disagree
with the Municipality’s analysis of how the legislation should be interpreted in light of
our prior decisions. The Municipality, like the Commission, interprets the legislature’s
use of language similar to Olsen Logging as limiting the probability of success on the
merits standard to stays of disability benefits on which the employee relies as a salary
substitute. But the legislature did not restrict this standard to disability payments when
it rewrote AS 23.30.125(c).
Our decision in Childs v. Copper Valley Electric Ass’n supports interpreting
“continuing future periodic compensation payments” to include future medical benefits
that the Board has awarded.39 In Childs we construed a part of the statute that refers to
“installment[s] of compensation” as including medical benefits.40 We held there that
“compensation” in AS 23.30.155(e) included medical benefits; at the time subsection
.155(e) provided that “[i]f any installment of compensation payable without an award is
38
State v. Pub. Safety Emps. Ass’n, 93 P.3d 409, 416 (Alaska 2004) (quoting
Pub. Safety Emps. Ass’n v. State, 799 P.2d 315, 319 (Alaska 1990)) (internal quotation
marks omitted).
39
860 P.2d 1184 (Alaska 1993).
40
Id. at 1192.
-16- 6780
not paid within seven days after it becomes due, . . . there shall be added to the unpaid
installment an amount equal to 20 percent of it.”41 We rejected the view from states
“exclud[ing] medical benefits from ‘compensation,’ on the grounds that medical benefits
are not typically paid by means of installments.”42 “Installment” is defined as “[a]
periodic partial payment of a debt.”43 In addition, AS 23.30.155(a) also uses the word
“periodic,” providing that “[c]ompensation under this chapter shall be paid periodically,
promptly, and directly to the person entitled to it, without an award, except where
liability to pay compensation is controverted by the employer.”
Other states consider future medical compensation payments to be like other
ongoing compensation payments. In construing its workers’ compensation statute, the
Maine Supreme Judicial Court held that an employer was required to pay ongoing
medical benefits while an appeal was pending even if the employer had no way to
recover the benefits if it were successful on appeal.44 The Maryland Court of Special
Appeals, in a case concerning payment of past medical benefits, indicated that ongoing
medical benefits should be treated like other ongoing benefits: The court said the
purpose of the anti-stay provision of its workers’ compensation statute was “to prevent
a cessation of the weekly compensation benefits and ongoing medical care that are
necessary for a claimant’s survival and well-being while an appeal is pending.”45
41
Id. The legislature amended subsection (e) in 1988 to increase the penalty
award to 25 percent. Id. at 1192 n.8.
42
Id. at 1192 (citing Int’l Paper Co. v. Kelley, 562 So. 2d 1298, 1302 (Miss.
1990)).
43
BLACK ’S LAW DICTIONARY 868 (9th ed. 2009).
44
Ryerson v. Pratt & Whitney Aircraft, 495 A.2d 808, 811-12 (Me. 1985).
45
Univ. of Maryland Med. Sys. Corp. v. Erie Ins. Exch., 597 A.2d 1036, 1041
(Md. App. 1991).
-17- 6780
There are policy arguments on both sides of this issue. Medical treatments
can be expensive, and the Municipality points to a report by the Division of Workers’
Compensation showing that medical costs account for about three-fourths of workers’
compensation costs in Alaska.46 Because the probability of success on the merits is a
high threshold, and because the employer cannot recover overpaid benefits in all cases,
there are reasons to be cautious about construing “continuing future periodic
compensation payments” to include all medical benefits. On the other hand there are also
good reasons to treat medical care, especially medical care sought in the first two years
following an injury,47 as similar to “periodic disability payments on which an employee
relies as a salary substitute.”48 Both Adamson and Olsen discuss the necessity of medical
care to an injured worker, and Olsen’s case illustrates the difficulty an employee can face
if she has no other health insurance and cannot otherwise pay for a needed procedure.49
In addition, when an employee cannot get medical treatment, she can face a prolonged
period of unemployment or underemployment, and her condition may worsen while she
46
It is not clear from the report whether the medical costs include evaluations
like second independent medical evaluations as well as direct care for injured workers.
47
See AS 23.30.095(a) (requiring the employer to provide medical care as
needed for recovery for time period not to exceed two years).
48
Olsen Logging Co. v. Lawson, 832 P.2d 174, 176 (Alaska 1992).
49
The difficulty she faces in completing treatment undermines the
Municipality’s assertion that injured workers still have access to reasonable and
necessary medical treatment, even when their Board-ordered treatment has been stayed.
Olsen’s doctor testified that the lab does not begin to grow cells for future implantation
until “all the paperwork for insurance is done.”
-18- 6780
waits for the appeal. Delaying treatment can also delay the date of medical stability,50
which delays an assessment of any permanent impairment.51
In discussing the balance of hardships approach in Olsen Logging, we said
that “[w]here the injury which will result from . . . the preliminary injunction is not
inconsiderable and may not be adequately indemnified by a bond, a showing of probable
success on the merits is required.”52 In many cases involving medical care, that standard
is met. A bond may ensure payment of the cost of treatment at a later date, but an injured
worker who has to delay treatment while an appeal is pending is not able to recover
anything for continuing pain and may have a reduced income for a considerable period
of time while waiting for medical care. Moreover, when the Commission is considering
a request to stay future medical benefits, the Board has already conducted a hearing,
evaluated the evidence, and determined compensability. In other words, when an
employer seeks a stay of future medical benefits, “the employer has just lost on the merits
in a competent forum.”53
Olsen Logging essentially set up a system in which the balance of hardships
was determined in advance. If the stay involved ongoing benefits that an injured worker
would use as a salary substitute, then the balance of hardships tipped in favor of the
injured worker; on the other hand, when the issue involved a lump sum, the balance of
50
See AS 23.30.395(27) (defining medical stability).
51
See AS 23.30.185 (providing that TTD cannot be paid after medical
stability).
52
832 P.2d at 176 (quoting State v. United Cook Inlet Drift Ass’n, 815 P.2d
378, 379 (Alaska 1991)).
53
See 8 ARTHUR LARSON & LEX K. LARSON , LARSON ’S W ORKERS ’
COMPENSATION LAW § 130.08[4] (2012) (discussing legal standards for stays on appeal
of workers’ compensation benefits).
-19- 6780
hardships favored the employer. We recognize that medical benefits are different from
disability payments in that they are not fixed — there is substantial variation in the type
of treatment an employee seeks as well as the cost and effectiveness of treatment. But
they are more like disability payments that an employee relies on as a salary substitute
than lump sums; like benefits an employee needs as a salary substitute, the hope of future
medical treatment “is a meager substitute” for needed care.54
V. CONCLUSION
For the foregoing reasons, we AFFIRM the Commission’s order in
Municipality of Anchorage v. Adamson. We VACATE the Commission’s order in
Olsen v. City & Borough of Juneau and REMAND to the Commission for further
proceedings consistent with this opinion.
54
Olsen Logging Co., 832 P.2d at 176.
-20- 6780 | 01-03-2023 | 05-11-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/512635/ | 858 F.2d 1272
UNITED STATES of America, Plaintiff-Appellee,v.Tomas PEREZ and Raul Ramirez, Defendants-Appellants.
Nos. 88-1099, 88-1254.
United States Court of Appeals,Seventh Circuit.
Argued May 20, 1988.Decided Oct. 6, 1988.
Dennis A. Giovannini, Giovannini & Goldberg, Chicago, Ill., for defendants-appellants.
John McKenzie, Asst. U.S. Atty., Anton Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.
Before CUMMINGS and POSNER, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
ESCHBACH, Senior Circuit Judge.
1
In this direct criminal appeal, the two defendants-appellants challenge the sentences imposed on them by the district court. Both defendants were charged, along with nineteen other defendants, in a twelve-count indictment for their involvement in an international drug trafficking operation. Pursuant to a plea agreement, which did not contain an agreed-upon sentence, both defendants pleaded guilty to certain counts in the indictment. Upon review of the record, we affirm the sentences imposed by the district court.
I.
2
Each of the defendants in this appeal was charged with three different counts from this twelve-count indictment. Defendant Tomas Perez pleaded guilty to Count I, conspiracy to possess with intent to distribute cocaine and marijuana in violation of 21 U.S.C. Sec. 841(a)(1), and Count XII, distribution of marijuana in violation of 21 U.S.C. Sec. 841(a)(1). Pursuant to the plea agreement, Count XI, which charged distribution of cocaine, was dismissed against Perez after sentencing.1 Perez was sentenced to twenty-one years imprisonment on Count I and a consecutive five-year term on Count XII. In addition, he was sentenced to two years of supervised release and a special assessment of $100 as specified in 21 U.S.C. Sec. 841(b).
3
Defendant Raul Ramirez pleaded guilty to Count I and to Count VII, possession of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 846. Count VI, which charged Ramirez with possession of marijuana with intent to distribute, was dismissed after sentencing in accordance with the plea agreement. Ramirez was sentenced to a ten-year term of imprisonment on Count I, to be followed by a consecutive five-year term on Count VII. He was also sentenced to a three-year term of supervised release and a $100 special assessment.
4
Perez raises two claims on appeal. First, he contends that his right to due process was violated because the district court allegedly relied on false information and speculation. Second, he claims that the district court abused its discretion by not considering the mitigating factors that Perez presented at his sentencing hearing.
5
Ramirez contests his sentence on three different grounds. He contends that the district court improperly relied on information contained in another defendant's presentence report. He also claims that FED.R.CRIM.P. 32(c)(3)(D) was violated because the district court allegedly did not make a written determination in response to Ramirez's objections to the presentence report. Finally, Ramirez claims that the district court erroneously relied on his 1986 acquittal on drug charges when sentencing him.
II.
A.
6
Perez contends that the trial court relied on speculation and unsupported assumptions when sentencing him, in violation of his right to due process. In particular, he alleges that the trial court improperly considered six factors. First, Perez argues that the trial judge should not have speculated as to the impact of Perez's conduct on the Mexican officials that he bribed, or the people that he hired to transport the narcotics because these parties were willing, and probably experienced, participants. Second, the appellant objects to the trial judge's comments that money laundering may have been involved because no evidence was presented to substantiate such a claim. Third, Perez challenges the trial court's conclusion that he was not remorseful. Fourth, Perez contends that the trial judge inappropriately speculated as to what future crimes Perez might commit. Fifth, he claims that the trial court erred when it speculated that he was on his way to becoming a major cocaine dealer because the evidence only indicated Perez's involvement in one cocaine transaction. Finally, Perez claims that the trial judge held him liable for all of the pernicious effects that result from drug sales and usage.
7
Appellate review of sentences which are imposed by the trial court is limited. See, e.g., United States v. Hedman, 630 F.2d 1184, 1201 (7th Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981); United States v. Gonzales, 765 F.2d 1393, 1396 (9th Cir.1985), cert. denied, 474 U.S. 1068, 106 S.Ct. 826, 88 L.Ed.2d 798 (1986). If the sentences fall within the statutory limits, they can only be reversed for abuse of discretion. See, e.g., United States v. Marshall, 719 F.2d 887, 891 (7th Cir.1982).2 When a sentence is challenged because it is allegedly based on materially erroneous information, the defendant must show that "the challenged information 'is (1) false or unreliable, and (2) demonstrably made the basis for the sentence.' " Gonzales, 765 F.2d at 1396 (quoting United States v. Ibarra, 737 F.2d 825, 827 (9th Cir.1984)). See also United States v. Brown, 785 F.2d 587, 592 (7th Cir.1986); United States v. Harris, 558 F.2d 366, 375 (7th Cir.1977).
8
A review of the trial judge's comments at the sentencing hearing refutes the appellant's allegations. At the hearing, the trial judge stated:
9
But the facts in this case, Mr. Perez's own actions--and I'm not taking into consideration any actions of anyone else except Mr. Perez himself--involved the corruption of many people, including those officials in Mexico that he obviously bribed. I think that it would be difficult to deny that fact from his own statements that appeared on the tapes.
10
But in addition to that, Mr. Perez has corrupted many people who have been convicted in this court, people who would probably not even have been involved in a felony or even a serious crime if it had not been for Mr. Perez.... I specifically refer to those people that he called upon to assist him in bringing marijuana into this country ... perhaps--and I'm not sure that anyone was involved in this specific case--in laundering funds in this country.
11
I would point out that Mr. Perez at the time of his arrest had cash in the amount of $160,000. He was no small operator. He admits to, I think, a million seven hundred and fifty thousand dollars.
12
....
13
If he was not engaged in the distribution of cocaine--and I don't know that. I only know of one incident, and that's all I'm considering here.
14
Tr. 2-49 (emphasis added).
15
The trial judge's statements cannot be considered material misstatements. Perez was the head of an international drug-smuggling syndicate. He admitted that he attempted to smuggle between 8,000 to 9,000 pounds of marijuana between 1983 and 1987. Tr. at 34 (Nov. 25, 1987). Moreover, the Government submits that Perez stated, in a recorded telephone call, that he had been stopped at O'Hare Airport with approximately $116,000 in currency. This has not been disputed by the defendant, and is sufficient evidence to suggest that money laundering may have been involved. The trial court's assessments of the appellant's remorse, or lack thereof, and Perez's propensity to commit future crimes are all subjects that the trial court is best situated to consider as the factfinder. It is appropriate for the trial court to consider such factors as remorse, a lack thereof, and future potential danger to society.
16
The trial judge has great latitude in the information he uses to determine the sentence. 18 U.S.C. Sec. 3577 states: "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." This Court has permitted trial courts to even consider hearsay evidence, see Marshall, 719 F.2d at 891, pending charges, see United States v. Haygood, 502 F.2d 166, 169 (7th Cir.1974), cert. denied, 419 U.S. 1114, 95 S.Ct. 791, 42 L.Ed.2d 812 (1975), and the potential deterrence of others, see United States v. Hedman, 630 F.2d at 1201. See also United States v. Plisek, 657 F.2d 920, 926 (7th Cir.1981). "[T]here can be no doubt that the sentencing judge may consider the serious nature of the offense, the potential for deterrence through punishment, and whether the defendant is contrite." United States v. Sato, 814 F.2d 449, 452 (7th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 294, 98 L.Ed.2d 254 (1987).
17
"Sentences are intended to be tailored to the individual," Marshall, 719 F.2d at 891 (citing Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949)). The trial judge acted well within his discretion when he considered all of the factors and characteristics of Perez in determining his sentence. On the record in this case we cannot conclude that his sentence was based on materially erroneous information.
B.
18
Perez contends that the trial court failed to consider mitigating factors when sentencing him. He claims that his lack of any prior criminal record, his "reasonably good" work record, and the lack of violent conduct on his part during the offense should have resulted in a more lenient sentence.
19
It is clear from the transcript of the sentencing hearing that the trial judge considered all of the information before him, including Perez's humble immigrant origins. 2 Tr. 49. "As long as it appears that the sentencing judge is aware of the mitigating factors, and that he has considered them in good faith, the degree of weight put on those factors will seldom be questioned." United States v. Neyens, 831 F.2d 156, 160 (7th Cir.1987). As we stated in United States v. Rife, 835 F.2d 154, 156 (7th Cir.1987): "This court will not question the relative importance placed on one factor over another." See also Sato, 814 F.2d at 452.
20
Because we conclude that the trial judge did indeed consider all of the mitigating factors before him, we find no merit in Perez's contention in that regard.
III.
A.
21
Ramirez first contends that the trial court's judgment should be remanded for resentencing because the trial court allegedly violated FED.R.CRIM.P. 32(c)(3)(D).3 Ramirez claims that the trial court failed to make written findings regarding disputed matters contained in the Presentencing Report, and failed to make a written determination that the disputed matters would not be relied upon in sentencing.
22
The appellant challenges five separate aspects of the Presentencing Report. First, he claims that the cover sheet of the Report incorrectly mentions cocaine, implying that he pleaded guilty to conspiracy to distribute cocaine as well as marijuana. Ramirez denies any such involvement with cocaine. Second, the appellant objects to the probation officer's conclusion that Ramirez showed little remorse. Third, Ramirez claims that the ranch referred to in the Report was purchased in 1979, before his involvement in the conspiracy, and is thus unrelated to the narcotics proceeds. Fourth, he contends that he did not begin smuggling marijuana as early as the summer of 1986, and that he smuggled less marijuana than the Government suggests. Finally, Ramirez objects to the Report's references to his lack of cooperation.
23
FED.R.CRIM.P. 32(c)(3)(D) protects a defendant's due process right to fair sentencing procedures, and provides a clear record of the disposition and resolution of contested facts in the presentence report. See United States v. Eschweiler, 782 F.2d 1385, 1387 (7th Cir.1986). In order to be resentenced under Rule 32(c)(3)(D), the defendant must show that: "(1) allegations of inaccuracy were before the sentencing court and (2) the court failed to make findings regarding the controverted matters or a determination that the disputed information would not be used in sentencing." Id. at 1389.
24
The record on appeal indicates that the trial judge did indeed make written findings regarding the contested issues in the Presentencing Report. His findings, which discuss all of the issues raised by the appellant, were signed on February 17, 1988. These findings were sent to the United States Probation Office, but were not put into the record at that time nor sent to this Court. However, the findings were included in the record on appeal by stipulation and joint motion of Ramirez's counsel and the Government. Moreover, the trial judge expressly stated that the disputed matters would not be relied upon in determining the appellant's sentence. We must, accordingly, conclude that a violation of Rule 32(c)(3)(D) did not occur.
B.
25
Ramirez's second contention is that the trial court relied on confidential information contained in the Presentence Report of his brother, Augustine Ramirez. This Presentence Report was ordered sealed by the trial judge. Ramirez claims that the trial judge relied on Augustine Ramirez's Report without giving Raul Ramirez the opportunity to rebut the information.
26
This Court has adopted the Fifth Circuit's procedures for relying on the use of confidential presentence reports. In United States v. Scalzo, 716 F.2d 463, 468 (7th Cir.1983), we stated:
27
First of all, the trial judge should state on the record whether she is relying on undisclosed information and should provide on the record a summary of the information if she is so relying. Second, if she is relying on this material, she should forward the undisclosed material in a sealed envelope to this court as part of the record on appeal. Third, the sealed materials should include a written statement by the district judge specifying the reason as supporting the decision not to disclose the information as well as the facts underlying the summary provided to the defendant.
28
Id. at 468.
29
In the case before us, Ramirez speculates that the trial judge relied upon the confidential Report. However, he does not indicate any instance in the record where the trial judge asserted that he would be relying on the confidential information contained therein from which a reasonable inference might be drawn that he did. We must conclude that Ramirez's pure speculation of such reliance is unfounded.
C.
30
Finally, Ramirez claims that the trial judge enhanced his sentence based on a prior acquittal for drug charges. The transcript of the sentencing hearing indicates otherwise, however. The trial judge stated:
31
I would like to turn first to one question, and that is this defendant's lack of remorse. And I must say, Mr. Werksman, with all due respect to your client, that I see no remorse in this man.
32
As it's pointed out, this man had the opportunity earlier in 1986 to be tried on drug charges and, fortunately for him, was acquitted. If you listen to his own version, it was only a few months later that he was back in the business. That should have been, I think, a warning to him that he should not engage in the business, that at the very least he would be again prosecuted. If you listen to the government's version and Miss Villarreal's version, it was only a month or two later that he became involved again. So, I can see no remorse in this case.
33
Tr. at 25 (Nov. 26, 1987).
34
This Court has upheld the trial court's consideration of a prior acquittal as long as the the acquittal is not relied upon to enhance the sentence. In United States v. Cardi, 519 F.2d 309 (7th Cir.1975), we noted that a prior acquittal "does not preclude the district court from considering the information concerning Cardi's association with these activities." Id. at 314 n. 3. In United States v. Plisek, 657 F.2d 920 (7th Cir.1981), we permitted the trial court to refer to information in the presentence report concerning a prior acquittal, where the trial court did not enhance the sentence based on his review of the merits of this acquittal. Id. at 927.
35
The Supreme Court has underscored the broad latitude accorded the sentencing judge in making sentence determinations. In Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), the Court stated:
36
A sentencing judge ... is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant--if not essential--to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics.
37
Id. at 247, 69 S.Ct. at 1083 (footnote omitted).
38
Since we have not been presented with any evidence contradicting the trial judge's clear pronouncement that he was considering the prior acquittal only for the purpose of determining the appellant's remorse, we cannot conclude that the trial judge used the acquittal to enhance the sentence. As a result, we must uphold the trial judge's sentence.
IV.
39
For all of the foregoing reasons, the judgment of the trial court is
40
AFFIRMED.
1
Perez was originally sentenced to two separate twenty-five year terms of incarceration on Counts I and XII, to run concurrently with each other, and five years of supervised release with a $100 special assessment. This sentence was subsequently amended
2
While the Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, 98 Stat. 1976 (1987), and the Sentencing Act of 1987, Pub.L. No. 100-182, 101 Stat. 1266 (1987), went into effect after the crimes committed in the instant case, these acts leave the standard for appellate review of sentencing unchanged
3
FED.R.CRIM.P. 32(c)(3)(D) provides:
If the comments of the defendant and the defendant's counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons or the Parole Commission. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/723758/ | 91 F.3d 443
Donald B. WASSALL; Populist Party National Committee; JeffWilkerson; Bill Chandler; Phil Chesler; RussHunt; The Populist Observer; TomParker, Appellees,v.Jeffrey R. DeCARO; O'Malley & Miles; DeCaro, Doran,Siciliano, Gallagher, Sonntag & Deblasis, Donald B. Wassall,Populist Party National Committee; Bill Chandler; PhilChesler, Russ Hunt; The Populist Observer and Tom Parker, Appellants.
No. 95-3531.
United States Court of Appeals,Third Circuit.
Argued April 24, 1996.Decided July 29, 1996.
Donald B. Wassall (argued), Gibsonia, PA, for Appellants.
James A. Wood, Marianne C. Plant (argued), Israel, Wood & Puntil, Pittsburgh, PA, for Appellees Jeffrey R. DeCaro, DeCaro, Doran, Siciliano, Gallagher, Sonntag & DeBlasis.
R. Bruce Morrison, Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, PA, Scott G. Dunlop, Marshall, Dennehey, Warner, Coleman & Goggin, Pittsburgh, Pa, for appellee O'Malley & Miles.
Before: BECKER, NYGAARD and LEWIS, Circuit Judges.
OPINION OF THE COURT
NYGAARD, Circuit Judge.
1
In this diversity action alleging legal malpractice, the Populist Party, its Executive Director and National Chairman, Donald P. Wassall, various other Executive Committee Members, and the Populist Observer ("plaintiffs") sue their former attorney, Jeffrey R. DeCaro, and the two law firms at which DeCaro practiced law while representing plaintiffs ("malpractice defendants"). The district court granted summary judgment for malpractice defendants, interpreting the Pennsylvania Supreme Court case Muhammad v. Strassburger, McKenna, Messer, Shilobod & Gutnick, 526 Pa. 541, 587 A.2d 1346(Pa.), cert. denied, 502 U.S. 867, 112 S.Ct. 196, 116 L.Ed.2d 156 (1991), to bar plaintiffs' claims because plaintiffs had agreed to a dismissal of their defamation action for failure to prosecute. We will reverse.
I.
2
In July 1991, while DeCaro was a partner at O'Malley and Miles, Wassall and the Populist Party engaged DeCaro's services to sue The Spotlight, a political newspaper, and several other defendants ("defamation defendants"), for printing negative stories about Wassall and the Populist Party. After the defamation suit was removed to federal court by the defamation defendants in October 1991, DeCaro failed to serve three defamation defendants, Mr. Piper, Mr. Tiffany, and Mr. Ryan, within the allotted 120 days. Although the court extended the time for service, DeCaro again failed to serve them.
3
In December 1992, DeCaro left O'Malley and formed the new firm of DeCaro, Doran, Siciliano, Gallagher, Sonntag & DeBlasis, where he continued to represent plaintiffs in the defamation action. Over eighteen months after he filed the complaint, DeCaro still had not served the three defendants. Consequently, in July 1993, the court dismissed the claims as to these three defendants for lack of service.
4
In litigating the underlying defamation case, DeCaro's stewardship was shoddy at best. The record indicates that he missed several deadlines, misfiled pleadings, and, finally, failed to file a pretrial statement required by the magistrate judge. After DeCaro failed to file the pretrial statement, the magistrate judge held a hearing to determine if plaintiffs' defamation suit should be dismissed for failure to prosecute. At argument, the magistrate judge agreed to give DeCaro two more weeks to work toward settlement and to file the pretrial statement, but Wassall suggested that the plaintiffs' defamation claims and the defamation defendants' counterclaims be dismissed for failure to prosecute. Plaintiffs assert that they agreed to the dismissal because they "did not wish to suffer with defendants any longer and [wanted] to put a merciful end to two and a half years of malpractice...." Defamation defendants agreed to the mutual dismissals, and the magistrate judge recommended that the district court dismiss the claims and counterclaims for failure to prosecute. The district court adopted the magistrate judge's recommendation and dismissed both actions, thus ending the defamation action.
5
Plaintiffs then filed this legal malpractice action against DeCaro, the DeCaro firm and the O'Malley firm. Plaintiffs allege numerous acts of malpractice by DeCaro, inter alia: failing to work diligently to settle the case, which resulted in an unfavorable settlement; failing to move the case toward trial; failing to serve three of the defendants in the defamation action; failing to object to the magistrate judge's recommendations timely; failing to meet almost every deadline; failing to answer the counterclaim timely; failing to request that the court set aside default judgments; filing a motion to dismiss the counterclaim on behalf of counterclaim-defendants who had not been served, but not on behalf of those who had; failing to amend the complaint to incorporate many alleged ongoing libels; misrepresenting, repeatedly, what services he would perform for plaintiffs; failing to file a motion to dismiss the counterclaims in the case filed by defendants/counterclaim-plaintiffs and instead filing it in plaintiffs' case; misrepresenting himself as an expert in defamation litigation; failing to proceed with discovery; failing to request extension of discovery deadlines and misrepresenting to plaintiffs that he had; and failing to provide plaintiffs with filed documents. Plaintiffs were unsatisfied with DeCaro's stewardship in every aspect.
6
The malpractice defendants filed a motion to dismiss, which the district court denied. The court granted malpractice defendants' motion to bifurcate discovery and limit discovery to whether Muhammad barred the malpractice suit. After limited discovery, malpractice defendants filed a motion for summary judgment, which the district court granted. The district court believed that, because plaintiffs agreed in the underlying action to permit the court to dismiss for DeCaro's failure to prosecute, the dismissal constituted a settlement, and that, under Muhammad, the settlement barred the malpractice action.
II.
7
Plaintiffs appeal, arguing that agreeing to dismissal of the underlying defamation suit for failure to prosecute was not a "settlement," and that even if it were a settlement, this would not bar their suit. We need not resolve whether this constituted a settlement.
8
As a federal court sitting in diversity, we must do what we predict the Pennsylvania Supreme Court would do. See, e.g., Erie Castings Co. v. Grinding Supply, Inc., 736 F.2d 99, 100 (3d Cir.1984). In making this determination, we give proper regard to the opinions of Pennsylvania's intermediate courts. See id. at 100. The policies underlying applicable legal doctrine, current trends in the law and decisions of other courts also inform our decision. See id.
9
Viewing the facts in the light most favorable to plaintiffs, as we must when reviewing a grant of summary judgment, it appears that DeCaro did not negotiate and complete a settlement, frustrated efforts to have the case amicably resolved, wasted the resources of the courts by his "footdragging," and seriously impaired plaintiffs case, necessitating the agreement to have the case dismissed. We predict that, given these allegations and this record, the Pennsylvania Supreme Court would not extend its holding in Muhammad to bar this action.
A.
10
Applying Muhammad, the district court held that
11
[u]nder Pennsylvania law, a dissatisfied plaintiff may not maintain a suit for legal malpractice against his attorney following a settlement to which the plaintiff agreed.
12
The court erred, however, by not heeding the policy concerns expressed in Muhammad.
13
Indeed, we believe the district court interpreted Muhammad too broadly, ignoring subsequent opinions by the Pennsylvania Superior Court which are well-reasoned and interpret Muhammad narrowly. We are convinced that the case was meant to bar an action against an attorney who negotiates and consummates a settlement or similar agreement. We predict that the Pennsylvania Supreme Court would consider the policies enunciated in Muhammad and find that they favor allowing the plaintiffs' present action for malpractice.
B.
14
The Pennsylvania Supreme Court announced in Muhammad that a client who becomes dissatisfied with an attorney's settlement of an action, which the client had accepted, cannot then sue the attorney for malpractice. In Muhammad, the plaintiffs originally sued a hospital and others for medical malpractice. During settlement negotiations, the hospital offered $23,000.00 to settle the case and plaintiffs communicated their acceptance to their attorney. The court suggested that the hospital increase its offer to $26,500.00, which it did. Again, plaintiffs accepted the settlement. Later, plaintiffs informed their attorney that they were no longer satisfied with the amount of the settlement. Notwithstanding the plaintiffs' protest, the court enforced the agreement. Plaintiffs then hired new counsel and appealed, but the enforcement was affirmed on appeal. Undeterred, plaintiffs filed a malpractice suit against their trial attorney. On appeal, the Pennsylvania Supreme Court adopted a rule that important policy considerations supporting settlements barred the subsequent legal malpractice action.
15
Although motivated by several considerations, the encouragement of settlement was the most important motivating factor for the court's decision. It opined:
16
The primary reason we decide today to disallow negligence or breach of contract suits against lawyers after a settlement has been negotiated by the attorneys and accepted by the clients is that to allow them will create chaos in our civil litigation system. Lawyers would be reluctant to settle a case for fear some enterprising attorney representing a disgruntled client will find a way to sue them for something that "could have been done, but was not." We refuse to endorse a rule that will discourage settlements and increase substantially the number of legal malpractice cases. A long-standing principle of our courts has been to encourage settlements; we will not now act so as to discourage them.
17
587 A.2d at 1349 (emphasis added).
18
The court also expressed its disfavor of "litigation concerning litigation:"
19
Particularly troublesome to the efficacy of the courts are these "second bite" cases; they require twice the resources as a single case, yet resolve only a single litigant's claims--thus denying access to the courts to litigants who have never had a single resolution of their dispute. For that reason, henceforth we should view "litigation concerning litigation" cases with a jaundiced eye.
20
Id. at 1350. As noted by the Pennsylvania Supreme Court, the policy of avoiding "litigation concerning litigation" is aimed at preserving resources and allowing access to the courts by other litigants. The court, however, did not justify the decision to bar the malpractice action primarily based on this concern, but on the goal of encouraging settlements.
21
The Pennsylvania Superior Court originally read Muhammad broadly, see Miller v. Berschler, 423 Pa.Super. 405, 621 A.2d 595, 598 (1993) (Wieand, J., dissenting). The en banc court, however, in McMahon v. Shea, 441 Pa.Super. 304, 657 A.2d 938 (1995) (en banc) (five judge majority, four in dissent, with one concurring statement), alloc. granted, 674 A.2d 1074 (Pa.1996), overturned the panel's decision in Miller. In several cases, the Superior Court has held that legal malpractice actions are not barred: (1) if the attorney sued did not settle the case; (2) if the malpractice plaintiff was forced to settle because of the attorney's negligence; or (3) if the malpractice plaintiff does not try to question, retrospectively, the amount of the settlement the attorney negotiated. See, e.g., White v. Kreithen, 435 Pa.Super. 115, 644 A.2d 1262, alloc. denied, 539 Pa. 679, 652 A.2d 1324 (1994); McMahon. All three of these situations operate in this case. Even assuming that plaintiffs' agreement to the dismissal for failure to prosecute constituted a settlement of the underlying action, under the superior court authority, the plaintiffs would be allowed to prosecute this malpractice case.
22
At one point in Muhammad, discussing the fraud exception, the Pennsylvania Supreme Court states:
23
It is not enough that the lawyer who negotiated the original settlement may have been negligent; rather, the party seeking to pursue a case against a lawyer after settlement must plead, with specificity, fraud in the inducement.
24
587 A.2d at 1351 (emphasis added). Superior court cases have interpreted the language in Muhammad referring to the attorney having negotiated the settlement, 587 A.2d at 1349, 1351, to mean that Muhammad applies only to malpractice actions in which the client sues the attorney who negotiated and completed the settlement. See, e.g., White; see also Goodman v. Kotzen, 436 Pa.Super. 71, 647 A.2d 247 (1994) (malpractice action allowed against attorney who did not consummate settlement, but not allowed as to attorneys who did), alloc. denied, 540 Pa. 600, 655 A.2d 989 (1995). This narrow reading of Muhammad comports with the express policy concerns prompting the Pennsylvania Supreme Court's decision.
25
In White, a case more analogous to the situation here, the superior court concluded that when a client is forced to settle a case because of the attorney's negligence, the attorney may not invoke Muhammad to preclude the malpractice claim, stating:
26
[A]fter appellant discharged appellees, allegedly for failure to properly investigate and prepare her case for trial, appellant was forced, due to her inability to retain counsel, to accept the settlement figure proposed by the judge. Moreover and quite importantly, none of the motivating reasons for the Supreme Court decision in Muhammad would be achieved by finding the instant malpractice action barred....
27
644 A.2d at 1265; accord Lowman v. Karp, 190 Mich.App. 448, 476 N.W.2d 428 (1991) (plaintiff put in position where settlement was only choice may sue for malpractice); Edmondson v. Dressman, 469 So.2d 571 (Ala.1985) (same); Prande v. Bell, 105 Md.App. 636, 660 A.2d 1055 (1995) (client told she had no choice but to settle may sue attorney for malpractice).
28
Malpractice defendants argue that plaintiffs were not "forced" to settle. This misses the point. Plaintiffs "wanted out" of the case, not for what they were getting in a settlement, but because DeCaro had so shabbily represented them that they merely wanted an end to the legal travail DeCaro had inflicted upon them. The allegations and matters of record, taken in the light most favorable to plaintiffs, suggest that, like the plaintiff in White, plaintiffs here had little other choice.1
29
Malpractice defendants' reliance on Martos v. Concilio, 427 Pa.Super. 612, 629 A.2d 1037 (1993) and Spirer v. Freeland Kronz, 434 Pa.Super. 341, 643 A.2d 673 (1994), alloc. denied, 543 Pa. 730, 673 A.2d 336 (1996), is misplaced. In both Martos and Spirer the attorney sued for malpractice had done what he was hired to do: the attorney had negotiated and completed the settlement agreement. Moreover, both cases were decided before the superior court decision in McMahon which announced that Muhammad was to be construed more narrowly.2
Malpractice defendants assert that
30
[a]ny settlement negotiations of Mr. DeCaro were precluded by the appellants' actions in requesting that the underlying actions be dismissed. Thus, appellants cannot now be heard to complain that Mr. DeCaro failed to negotiate the settlement to which Mr. Wassall agreed.
31
This argument might be persuasive had DeCaro exerted a modicum of effort towards settlement. The record reveals that at every turn DeCaro missed yet another deadline. Of equal significance, the record also suggests that he further jeopardized the plaintiffs' defense to the counterclaim filed against them. With every minute the case continued with DeCaro, plaintiffs' negotiation position arguably waned and it became less likely that the defamation defendants would be willing to settle the claims and counter-claims on favorable terms, if at all. DeCaro cannot seriously argue that, because plaintiffs wanted him out of the case so badly that they were willing to accept a dismissal of their own case, he is entitled to walk away from his acts and omissions. Accepting this argument, surely, far from encouraging settlements, would reward indolence and incompetence.
32
Although the Pennsylvania Superior Court has viewed Muhammad narrowly, it has done so not by creating artificial distinctions, but by paying heed to the policy concerns underlying the Pennsylvania Supreme Court's holding in Muhammad. A federal district court in this circuit also has adopted the Superior Court's position that Muhammad does not announce a broad rule. In Builders Square, Inc. v. Saraco, 868 F.Supp. 748 (E.D.Pa.1994), the client sued its attorney for malpractice. The district court distinguished Muhammad, stating:
33
This is not an action by a client who later became dissatisfied with a settlement agreement consummated by his attorney with the client's assent. It is an action by a client dissatisfied with his attorney for allegedly failing to communicate settlement offers and depriving his client of an opportunity to settle a case on terms far more favorable than those later available in the circumstances in which the client was placed by the attorney's conduct.
34
Id. at 750.
35
The district court in Builders Square emphasized that its ruling did not frustrate Pennsylvania's policy of encouraging settlement because the attorney's negligence involved his failure to communicate an earlier, more favorable, settlement offer. It also distinguished Martos and Spirer by stating that those cases involved clients who had become dissatisfied with the consequences of their own decision to settle and were merely expressing "retrospective unhappiness" with the settlement agreement. The client in Builders Square was dissatisfied at the time of settlement, but was trying to mitigate the effects of the attorney's negligence.3C.
36
The policies expressed in Muhammad, of preserving resources and allowing access to the courts by other litigants, are served by allowing the present action for malpractice. Plaintiffs' allegations, if proven, show an enormous waste of the court's time by an unprepared attorney. Where the attorney's conduct in this regard "forces" a client to accept a dismissal of the case, allowing a subsequent malpractice action serves as a systemic deterrent for this behavior and thus promotes the policies articulated in Muhammad. An attorney who has neglected his role as steward, hopelessly delaying, and perhaps prohibiting, the system from properly resolving his client's case, should not be able to seek safe haven in a dismissal that resulted because the client could not risk allowing the attorney further to neglect his role. Under these conditions, we are convinced that the Pennsylvania Supreme Court would not shield DeCaro from liability under the guise of encouraging settlements in general.
37
Moreover, DeCaro's alleged conduct runs counter to the policy of encouraging settlements. It would be perverse, indeed, if under Muhammad, the Pennsylvania Supreme Court would not allow this case to go forward. One of plaintiffs' major complaints is DeCaro's footdragging in settlement negotiations. This conduct is documented by plaintiffs' letters to counsel urging him to settle the case, and letters from defamation defendants' counsel complaining of DeCaro's failure to negotiate at all regarding settlement over a three-month period. Had DeCaro worked diligently toward a settlement, this malpractice action might never have been filed and the underlying action probably could have been resolved more favorably to his clients. This would have allowed other litigants their day in court sooner. Discouraging this conduct would serve the salutary purposes articulated by the Pennsylvania Supreme Court in Muhammad.
38
Furthermore, the Pennsylvania Supreme Court articulated in Muhammad, as an additional reason for its decision, that "settlements reduce the stress and concrescent negativity associated with protracted litigation." 587 A.2d at 1351. The record suggests that as DeCaro delayed, defamation defendants became less willing to agree to settle their personal differences with plaintiffs and to refrain from printing derogatory stories in The Spotlight in the future. Were a jury to find this persuasive, the evidence would support a conclusion that DeCaro's conduct increased rather than decreased the stress and negativity by protracting the litigation.
39
We believe that the Pennsylvania Supreme Court would consider the policies articulated in Muhammad, the superior court cases interpreting Muhammad narrowly, and the jurisprudence of other states, in determining whether it would extend Muhammad to bar this present action. Having done so, we predict that it would conclude that a broad reading of Muhammad would be an unwise course which would run counter to the important policy goals it expressed therein. Therefore, we hold that Muhammad does not bar plaintiffs' malpractice action.III.
40
Although the action is not barred, defendants assert that plaintiffs cannot show any harm. Plaintiffs specifically allege that they were harmed by counsel's failure to serve three defamation defendants, which resulted in the court's dismissal of the case against those defendants for lack of service. Plaintiffs also allege that counsel did not engage in discovery, seriously hampering their ability to prove their claims had they gone to trial. A letter from defamation defendants' counsel indicates that his clients had been amenable to an agreement which would include a provision that, in the future, they would refrain from engaging in the conduct complained of by plaintiffs. The letter also indicates that as DeCaro procrastinated, defamation defendants became less amenable to refrain from disparaging remarks. The record has sufficient allegations and is replete with evidence of DeCaro's omissions and the resulting harm to plaintiffs. Indeed, in the defamation case the magistrate judge and district judge often resolved motions against plaintiffs based on DeCaro's failure to comply with procedure, failure to respond to pleadings, and his failure to follow the court's previous orders. These allegations, if established to the satisfaction of a fact-finder, would be sufficient to establish harm.
IV.
41
The O'Malley firm asserts as an alternative basis for affirming the summary judgment in its favor that it cannot be held liable for malpractice because, at the time DeCaro left the O'Malley firm, although DeCaro had not served Pifer, Tiffany, and Ryan within the 120 days contemplated by the Federal Rules, DeCaro had been given more time to complete service. Further, it argues, the dismissal of these defamation defendants for failure to serve did not occur until well after DeCaro left the O'Malley firm. Therefore, DeCaro's alleged negligence did not come to "fruition" until after DeCaro left. With respect to discovery negligence, the O'Malley firm makes the same argument:
42
O'Malley & Miles, however, cannot be held responsible for any alleged legal malpractice arising out of the failure to initiate discovery efforts as adequate time to conduct discovery existed even after DeCaro had left O'Malley & Miles.... The initial defamation suit filed by Wassall wherein he had hired DeCaro was still being litigated and discovery was still proceeding while DeCaro was working at his new law firm....
43
The district court did not discuss this basis for summary judgment in its opinion because initial discovery in this malpractice action had been limited to the Muhammad issue. Plaintiffs argue that, because discovery was limited to the Muhammad issue, affirming on this ground would be unfair. They add that allocating fault among the two firms and DeCaro is not properly performed on summary judgment.
44
The extent of O'Malley's liability and involvement has not been thoroughly briefed due to the bifurcated discovery. In their joint motion requesting the district court to bifurcate discovery and initially limit it to the Muhammad issue, the malpractice defendants stated:
45
Plaintiffs' Complaint contains twenty-one (21) counts of alleged malpractice, in connection with the underlying defamation actions which involved sixteen (16) parties. As such, it is anticipated that discovery regarding the underlying action will entail numerous depositions, interrogatories, requests for production of documents and requests for admissions.
46
Thus, affirming on this ground would deny plaintiffs the opportunity to conduct discovery and properly defend against the summary judgment motion.
47
The O'Malley firm also overlooks the fact that the three defamation defendants who were not served within the 120-day time period were not served while DeCaro worked for the O'Malley firm. O'Malley essentially argues that because DeCaro's negligence continued after he left the firm, it is relieved of its potential liability. But the retainer agreement drafted by O'Malley provides that it is between the O'Malley Firm (by DeCaro) and plaintiffs. The agreement lists O'Malley as "the Attorney" and DeCaro as the "Attorney who will be primarily responsible for the representation of the Client." Nowhere does it state that all liability for professional negligence travels with the primary attorney.
48
Because discovery was bifurcated at the O'Malley firm's request, we will not affirm on this alternative ground. Plaintiffs should be given a full opportunity to support their allegations regarding the O'Malley firm's liability in the district court after discovery.4
V.
49
In sum, we reverse the summary judgment in favor of defendants and remand for further proceedings consistent with this opinion.
1
Plaintiffs allege that they had no choice but to agree to the dismissal because
[they] felt that keeping DeCaro as plaintiffs' attorney any longer was to continue to expose all the plaintiffs to eventual financial ruination as well as continued out-of-pocket monetary loss, humiliation and loss of reputation, and [they realized] that the plaintiffs' libel suit had been destroyed procedurally by DeCaro while absolutely nothing had been done by the defendants to move the case forward and that plaintiffs did not have the financial resources to hire another attorney, [they] reluctantly agreed to go along with a settlement, but told DeCaro that [they] would [not] pay libel suit counterplaintiffs' legal fees, and that [they] wanted a settlement that would prohibit either side from publishing negative or defamatory comments about the other in the future.
2
Even prior to McMahon, however, the superior court decided in Collas v. Garnick, 425 Pa.Super. 8, 624 A.2d 117 (1993), that Muhammad did not always bar the malpractice action when the attorney sued for malpractice had negotiated and completed the settlement. The court allowed the malpractice action in Collas because the client's complaint was regarding the scope of the release in the settlement
3
A brief look at the reported cases in other states also supports the narrow reading of Muhammad. The New Jersey Supreme Court has expressly rejected Muhammad. See Ziegelheim v. Apollo, 128 N.J. 250, 607 A.2d 1298, 1304 (1992). According to the New Jersey Supreme Court, Muhammad holds that "a dissatisfied litigant may not recover from his or her attorney for malpractice in negotiating a settlement that the litigant has accepted." Ziegelheim, 607 A.2d at 1304 (emphasis added). Thus, even though the New Jersey Supreme Court construed the Muhammad holding as the more narrow one suggested by plaintiffs, it rejected the holding as severe and as inappropriately "apply[ing] a more lenient rule to lawyers who negotiate settlements." Ziegelheim, 607 A.2d at 1304. The Connecticut and Massachusetts Supreme Courts likewise do not follow the Muhammad rule. See Grayson v. Wofsey, Rosen, Kweskin, 231 Conn. 168, 646 A.2d 195 (1994) (settlement does not insulate lawyers from malpractice claims); Fishman v. Brooks, 396 Mass. 643, 487 N.E.2d 1377 (1986) (client alleging that attorney caused client to settle for less may sue for malpractice). See also Braud v. New England Insur. Co., 534 So.2d 13 (La.Ct.App.1988) (same); McCarthy v. Pedersen & Houpt, 250 Ill.App.3d 166, 190 Ill.Dec. 228, 621 N.E.2d 97 (1993) (same). We consider the law in other states only to assess what the Pennsylvania Supreme Court would hold. We must be faithful to that court's pronouncement of its own law; nevertheless, the clear criticism against a broad reading of Muhammad is relevant to our task in predicting whether the Pennsylvania Supreme Court would extend Muhammad to bar plaintiffs' claim. We predict it would not
4
The O'Malley firm urges us to affirm on the counts alleging negligence in failing to plead the proper standard for defamation against a public figure, because in several paragraphs of the defamation complaint DeCaro appropriately pleaded the proper standard of "actual malice" under New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). In fact, in the underlying suit the magistrate judge recommended that the defamation defendants' motion to dismiss the defamation complaint on the basis of failure to plead the proper standard be denied. Plaintiffs argue that, even if DeCaro pleaded the proper standard as to some counts, he did not as to many others. In light of the bifurcated discovery, plaintiffs should have a proper opportunity to respond to these arguments and the district court should address these arguments first | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/354166/ | 572 F.2d 1386
Curtis B. DANNING, as Trustee in Bankruptcy of Fenton,Lavine & Co., a partnership, Plaintiff-Appellee,v.Beau Berlinski LAVINE, Defendant-Appellant.
No. 77-1192.
United States Court of Appeals,Ninth Circuit.
April 14, 1978.Rehearing Denied June 26, 1978.
Roy L. Kight (argued), Marina Del Rey, Cal., for defendant-appellant.
Richard S. Berger (argued), of Gendel, Raskoff, Shapiro & Quittner, Los Angeles, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before WALLACE, SNEED and KENNEDY, Circuit Judges.
KENNEDY, Circuit Judge:
1
The first issue on this appeal is whether a complaint by a bankruptcy trustee alleging that defendant had received either a fraudulent conveyance or a voidable preference was sufficient to support a default judgment. The second issue is whether or not an order holding defendant a recalcitrant witness under 28 U.S.C. § 1826 for refusing to answer questions at a deposition may continue in effect after a default judgment has been entered against the defendant.
2
The appellee, Danning, is the trustee in bankruptcy for Fenton, Lavine & Co. (Fenton). Before commencement of the bankruptcy proceedings, Fenton was a clearinghouse member for the West Coast Commodities Exchange. In May of 1973 the Exchange determined that the funds in the accounts Fenton maintained for its customers were insufficient. The Exchange demanded that Fenton increase its capital by $200,000 to cover potential losses.
3
Then followed a series of alleged transactions by the appellant, Lavine, a co-principal in Fenton, and we summarize only the essential elements here. Using her maiden name, Lavine obtained a $200,000 bank loan and deposited the sum in the Fenton trading account. After the deposit was made, a check for $175,000 was drawn by Fenton to the order of Lavine and delivered to her. Further transactions occurred, the net result of which was that Fenton's financial statements did not disclose that the $175,000 check had been drawn.
4
On October 22, 1973, two days before Fenton filed a petition for an arrangement under chapter XI of the Bankruptcy Act, Lavine had the $175,000 check certified and then converted into a number of cashier's checks. She used $25,000 to repay a portion of her loan. She purportedly delivered the remaining checks to an unidentified party, and those checks were subsequently cashed.
5
The trustee commenced the instant action against Lavine, alleging that if the $175,000 had been given to Lavine as payment of a debt owed to her, she had received a voidable preference under section 60(b) of the Bankruptcy Act, 11 U.S.C. § 96(b), and that if the money had been the capital of the bankrupt, the payment to Lavine was a fraudulent conveyance under section 67(d) of the Bankruptcy Act, 11 U.S.C. § 107(d). The trustee sought to depose Lavine to learn the name of the party or parties to whom the balance of the cashier's checks had been transferred. After failing to appear at a number of scheduled depositions, Lavine appeared at a deposition on June 23, 1976, but refused to answer the pertinent questions. The district court then ordered Lavine to appear at a deposition on July 1, 1976 and to answer the questions. Lavine appeared as ordered but again refused to answer. There followed another court order to appear and answer, and this time Lavine failed to appear at all. The trustee moved to hold Lavine in contempt, and at the hearing on the motion Lavine sought permission to withdraw her answer to the trustee's complaint, thereby submitting to a default judgment. Her motion was allowed; default was entered. The court scheduled a hearing on November 30, 1976 to determine the amount of the judgment, and deferred to that time its ruling on the trustee's motion to hold Lavine in contempt.
6
Lavine failed to appear at the November 30 hearing. The court entered judgment of default in favor of the trustee. The district court also ruled, under 28 U.S.C. § 1826, that Lavine was a recalcitrant witness and ordered her committed to the custody of the United States Marshal until such time as she answered the questions put to her at the depositions. In light of these facts we turn to the contentions of the parties.
Appeal from the Default Judgment
7
Lavine first appeals from the default judgment entered in favor of the trustee. Notwithstanding the fact that the default judgment was entered after Lavine's own motion to withdraw her answer, Lavine now claims that the complaint is insufficient to support the default judgment and that entry of the default judgment was error.
8
Upon entry of a default judgment, facts alleged to establish liability are binding upon the defaulting party, and those matters may not be relitigated on appeal. Thomson v. Wooster, 114 U.S. 104, 5 S. Ct. 788, 29 L. Ed. 105 (1885); see Geddes v. United Financial Group, 559 F.2d 557 (9th Cir. 1977). However, it follows from this that facts which are not established by the pleadings of the prevailing party, or claims which are not well-pleaded, are not binding and cannot support the judgment. Nishimatsu Construction Co. v. Houston National Bank, 515 F.2d 1200 (5th Cir. 1975). "On appeal, the defendant, although he may not challenge the sufficiency of the evidence, is entitled to contest the sufficiency of the complaint and its allegations to support the judgment." Id. at 1206 (citations omitted); accord, Thomson v. Wooster, supra ; 9 Moore's Federal Practice P 203.06, at 720 (2d ed. 1975). The issue here is whether the allegations in the complaint are sufficient to state a claim on which the trustee may recover, either on the theory that Lavine received a voidable preference or because Fenton made a fraudulent conveyance. Appellant contends that the complaint is insufficient to support either theory because the trustee omitted sufficient allegations of insolvency.
9
The complaint alleges insolvency only in general terms. In the causes of action relating to a fraudulent conveyance, the complaint stated that: "At the time of said transfer, (Fenton) was, or was thereby rendered, insolvent." Record, vol. I, at 2. Similarly, as to the voidable preference, the complaint alleged that: "At the time of said transfer, (Fenton) was insolvent and defendant (Lavine) then had reasonable cause to believe that (Fenton) was insolvent." Record, vol. I, at 4. Appellant claims that this general allegation is insufficient and that the trustee was required to plead specific facts showing insolvency. We disagree.
10
We note that the trustee contends that insolvency was not an essential element for recovery on three of the five counts of his complaint, and hence that the default judgment should be affirmed as to those counts. We need not determine whether or not the trustee is correct in this argument, since we hold that the insolvency allegations were adequate.
11
In a plenary action brought by a trustee in bankruptcy to set aside a transfer of property as either a voidable preference or as a fraudulent conveyance, the pleadings are governed by rule 8 of the Federal Rules of Civil Procedure. 2A Moore's Federal Practice P 8.17(4), at 1756-57 (2d ed. 1975); 3 Collier on Bankruptcy P 60.61, at 1119-20 (14th ed. 1977). Pleadings under the Federal Rules should be liberally construed, and "a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim." 2A Moore's Federal Practice P 12.08, at 2271-74 (2d ed. 1975) (emphasis in original; footnote omitted).
12
This court in another context has held that a general allegation of insolvency in a complaint constitutes an allegation of an ultimate fact and is therefore a sufficient pleading. In re Interstate Oil Co., 63 F.2d 674, 675 (9th Cir. 1933) (petition in bankruptcy). Further, in an action seeking to recover a voidable preference, a complaint alleging insolvency in substantially the same terms as the complaint in the instant case has been upheld as stating ultimate facts, not conclusions. Hummel v. Wells Petroleum Co., 111 F.2d 883 (7th Cir. 1940).
13
In light of the foregoing authorities and the liberal pleading standards embodied in rule 8, we conclude that the trustee adequately pleaded the allegations of insolvency. The facts in the complaint are deemed admitted by virtue of the default judgment, and the judgment of default is therefore affirmed.
Appeal from the Order of Contempt
14
Appellant next challenges the district court's order holding her in contempt for failing to disclose the identity of the person to whom she transferred the money. On appeal, Lavine contends that after entry of final judgment, the district court could no longer hold her in contempt.
15
The order of the district court must be deemed one of civil, not criminal, contempt. Sanctions were imposed under 28 U.S.C. § 1826. That section "is intended to codify present civil contempt practice." H.R.Rep.No. 91-1549, 91st Cong., 2d Sess., reprinted in (1970) U.S.Code Cong. & Admin.News, 4007, 4008. As such, "(t)he confinement is civil, not criminal; its purpose is to secure the testimony through a sanction, not to punish the witness by imprisonment." Id. at 4022. The trustee concedes that the order was one of civil contempt but nevertheless argues that a civil contempt order may survive final judgment.
16
In the instant case the questions were put to Lavine as part of discovery in the trustee's suit. The depositions were taken to obtain a judgment and no further discovery for this purpose was necessary after entry of the judgment.1 It was improper to use the sanctions of 28 U.S.C. § 1826 to secure testimony at a deposition that was no longer necessary in the proceeding. See Shillitani v. United States, 384 U.S. 364, 370-71, 86 S. Ct. 1531, 16 L. Ed. 2d 622 (1966); Backo v. Local 281, United Brotherhood of Carpenters, 438 F.2d 176 (2d Cir. 1970); F.T.C. v. Stroiman, 428 F.2d 808 (8th Cir. 1970) (per curiam); Yates v. United States, 227 F.2d 844, 847 n.4 (9th Cir. 1955) (dictum); Harris v. Texas & Pacific Railway Co., 196 F.2d 88, 90 (7th Cir. 1952). For this reason we vacated the district court's order of contempt.2 We acknowledge that if during the course of discovery in aid of execution on the judgment, Fed.R.Civ.P. 69(a), appellant had refused to disclose the identity of the person who received the proceeds, a contempt order compelling her to answer might be proper. That situation, however, is not presented by this appeal. The discovery contemplated by rule 69(a) is a distinct phase of the litigation with a narrow focus. It is solely to enforce the judgment by way of the supplemental proceedings. We note that California law places special limitations on post-judgment discovery procedures, further indicating the separate nature of such proceedings. See, e. g., Cal.Civil Proc.Code §§ 714, 714.5 (West Supp.1977) (judgment debtor may be examined only once every four months); id. §§ 714, 717 (notice to appear required to have warning in boldface type that failure to appear may result in contempt); id. § 717.1 (limitation on distance a judgment debtor may be required to travel; tender of payment for mileage required). Similar restrictions may be appropriate in a proceeding under rule 69(a). However, as we have discussed, Lavine was held in contempt for her continued failure to answer the questions put to her before the default judgment was entered, not for any refusal to respond to post-judgment discovery.
17
While the record is far from clear, it appears that the district court may have held Lavine in contempt pursuant to Federal Rule of Civil Procedure 37 as well as under 28 U.S.C. § 1826. All that we have said in explaining why we vacated the order holding appellant a recalcitrant witness under section 1826 applies with equal force to a civil contempt order under rule 37 in this case. Under either section 1826 or rule 37 the order was one of civil contempt and was entered for failure to respond to prejudgment discovery.3
Trustee's Request for Sanctions
18
The trustee moved for sanctions against appellant for prosecuting a frivolous appeal. Sanctions are inappropriate, however, since the appeal from the district court's order of contempt had merit.
19
For the foregoing reasons we have previously entered an order vacating the orders holding appellant in contempt and affirming the judgment of the district court in all other respects.
20
In view of our resolution of the default judgment issue in favor of appellee, a pending motion by appellee to strike certain exhibits and portions of appellant's brief pertaining to that issue is rendered moot and we decline to rule on the motion.
1
Cf. United States v. Cappetto, 502 F.2d 1351 (7th Cir. 1974). In Cappetto, the trial court held the defendants in contempt for refusal to obey discovery orders and in addition entered a default judgment. The Seventh Circuit held that even though judgment had been entered the district court retained authority to enforce the civil contempt citation and to imprison the defendants until they complied with the discovery order. Id. at 1359. While the court did not address the basis for the contempt order, it appears that the questions propounded to the defendants continued to be relevant to the main proceeding since only a preliminary injunction had been ordered and the district court was still considering whether other types of relief could appropriately be granted. Id. The purpose of the discovery order had not yet abated and therefore continuing coercion was appropriate. Another interpretation of Cappetto, also consistent with this opinion, is that disclosure may have been part of the remedy obtained and hence the default judgment raised no possibility of abatement
2
In an order from the bench, we affirmed the judgment of the district court but vacated its order holding appellant in contempt. We also denied the trustee's motion for sanctions against Lavine for prosecuting a frivolous appeal. Danning v. Lavine, No. 77-1192 (9th Cir., June 1, 1977)
3
We are aware that, on its face, rule 37 arguably permits a district court both to enter default judgment and to hold a defendant in civil contempt when discovery orders are disobeyed. We believe, however, that our conclusion as to the abatement of section 1826 contempt citations should apply equally to rule 37. Once default judgment is entered, there is simply no further purpose to be served by the imposition of civil contempt sanctions | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/522207/ | 873 F.2d 830
Edward Anthony ELLIS, Petitioner-Appellant,v.James A. LYNAUGH, Director, Texas Department of Corrections,Respondent-Appellee.
No. 88-2829.
United States Court of Appeals,Fifth Circuit.
May 30, 1989.
Donald F. Killingsworth, Tyler, Tex., for petitioner-appellant.
Bill Zapalac, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before REAVLEY, JOHNSON and DAVIS, Circuit Judges.
REAVLEY, Circuit Judge:
1
Edward Anthony Ellis appeals from the federal district court's denial of habeas corpus relief from the death sentence imposed by a Texas court. We affirm.
I. Background
2
In March 1983, a grand jury in Harris County returned an indictment charging Edward Ellis with the murder by asphyxiation of Bertie Elizabeth Eakins while he was in the course of committing burglary. A jury found Ellis guilty as charged and returned affirmative answers to the special punishment issues submitted pursuant to Tex.Code Crim.Proc. art. 37.071 (Vernon Supp.1989). The trial court, as required by law, sentenced Ellis to death by lethal injection. The Texas Court of Criminal Appeals affirmed. Ellis v. State, 726 S.W.2d 39 (Tex.Crim.App.1986), cert. denied, 480 U.S. 926, 107 S. Ct. 1388, 94 L. Ed. 2d 702 (1987). After the state courts denied his application for writ of habeas corpus, Ellis sought relief in federal court. In July 1988, the district court denied Ellis's petition for writ of habeas corpus but granted a certificate of probable cause.
3
On appeal Ellis alleges several grounds of error: (1) that the trial court improperly excluded two venire members in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968) and Adams v. Texas, 448 U.S. 38, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980); (2) that the evidence was insufficient to prove the allegations in the indictment; (3) that the trial court erred in failing to define the term "deliberately" for the jury; (4) that Ellis was denied a fair and impartial trial, due course of law, due process and equal protection of law and his right to be free of cruel and unusual punishment by the systematic exclusion of Hispanics from the grand juries in Harris County, Texas and from service as grand jury foremen; (5) that he was denied the effective assistance of counsel at trial and on appeal; and (6) that the district court erred in failing to conduct a hearing on the issues of ineffective assistance of counsel and systematic exclusion of Hispanics from grand jury service. Because we conclude that each of these claims is either procedurally barred or without merit, we affirm the district court's denial of the writ.
II. The Witherspoon Issue
4
Ellis contends that two prospective jurors, Holstead and Bradshaw, were excluded improperly from serving on the jury on the basis of their opposition to the death penalty in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968) and Adams v. Texas, 448 U.S. 38, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980) and that Bradshaw's exclusion was not harmless error as found by the district court.
5
In Witherspoon, the Supreme Court held that a state violates a capital defendant's rights under the Sixth and Fourteenth Amendments when it excuses for cause all venire members who express conscientious objections to capital punishment. The Court did recognize, however, that a state has a legitimate interest in excluding those potential jurors whose opposition to capital punishment would preclude their impartiality and thereby frustrate administration of a state's death penalty scheme. In attempting to strike an appropriate balance between these two competing interests, the Court wrote that venire members may be excluded for cause if they make it
6
unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt.
7
391 U.S. at 522 n. 21, 88 S. Ct. at 1777 n. 21 (emphasis in original).
8
The Supreme Court reexamined the Witherspoon standard in Adams v. Texas, 448 U.S. 38, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980). In deciding whether certain potential jurors had been excluded properly pursuant to the Texas statute at issue, the Court discussed its prior opinions, including Witherspoon, and concluded that[t]his line of cases establishes the general proposition that 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.
9
448 U.S. at 45, 100 S. Ct. at 2526 (emphasis added).
10
Recognizing that the already difficult task of distinguishing between prospective jurors whose opposition to capital punishment would impair their impartiality and those whose opposition could be set aside effectively had been made more difficult "by the fact that the standard applied in Adams differ[ed] markedly from the language of [Witherspoon ]," the Supreme Court undertook to clarify the issue in Wainwright v. Witt, 469 U.S. 412, 421, 105 S. Ct. 844, 850, 83 L. Ed. 2d 841 (1985). In so doing, the Court reaffirmed the above quoted standard from Adams as the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment. The Court noted that the Adams standard not only dispensed with Witherspoon 's reference to "automatic" decisionmaking but also did not require that a juror's bias be proved with "unmistakable clarity." Id. at 424, 105 S.Ct. at 852.
11
This is because determination of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism. What common sense should have realized experience has proved: many veniremen simply cannot be asked enough questions to reach the point where their bias has been made "unmistakably clear"; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.... [T]his is why deference must be paid to the trial judge who sees and hears the juror.
12
Id. at 424-26, 105 S. Ct. 852-53 (footnote omitted). Thus, in a proceeding under 28 U.S.C. Sec. 2254, the trial court's factual determination that a potential juror is disqualified is entitled to a presumption of correctness, absent one of the specifically enumerated exceptions contained in 28 U.S.C. Sec. 2254(d). Id. at 429, 105 S.Ct. at 855. With this in mind, we turn to those claims before us.
A. Prospective Juror Holstead
13
Ellis claims generally in his brief that Holstead was excluded improperly but points to nothing specific in the voir dire to support his contention. We agree that Holstead's exclusion was proper for the reasons given in the district court's opinion.
B. Prospective Juror Bradshaw
14
Ellis argues that, because Bradshaw's answers to defense counsel's questions showed that he was qualified to serve on the jury under Witherspoon and Adams, the trial court's exclusion of him for cause was erroneous. Ellis asserts that the trial court set out to disqualify Bradshaw by taking over the voir dire and pointing out ways in which he could avoid jury service and that this conduct deprived the defendant of a full and fair hearing on the matter of juror qualification and stripped the trial court's findings of the presumption of correctness to which they normally would be entitled.
15
The evaluation of this contention requires study of the entire voir dire in which Bradshaw was involved. That begins with the introductory remarks the trial court made to the group of venire members before individual voir dire began. The court explained that those persons selected to serve on the jury would have to take an oath to render their verdict according to the law and the evidence. He emphasized that if any of the prospective jurors disagreed with some aspect of the law to the extent that they could not take the oath to follow the law, they would not be qualified to serve. The court made it plain, though, that mere disagreement with the law did not automatically disqualify one from serving as a juror. Even if a person disagreed with the law as it was explained, "if you can set that aside and still be fair and impartial then you may still be qualified to be a juror." After explaining that taking the juror's oath was a very serious matter and that knowingly violating the oath would subject a person to severe penalties, the court made the following statements:
16
So we are not going to make anybody, force anyone to take an oath that they can't follow. You see what I am saying? So that's why we are going back to this thing if you disagree with the law, if you disagree with the law of the indictment to the extent and degree that it is going to destroy your conscience or soul, we are not going to make you take the oath.
17
The trial court began Bradshaw's individual voir dire by asking if he had religious, moral or conscientious scruples against the infliction of death as a punishment for a crime in a proper case. Bradshaw answered "yes." The prosecutor then took over the questioning; he first asked Bradshaw if he would put in his own words his feelings about the death penalty:
18
A. The way I feel about it--say, if he did take someone's life, taking his life is not going to bring him back. So that's the eye for an eye thing and I just--
19
Q. [Prosecutor] You go for the two wrongs don't equal a right?
20
A. That's right.
21
Q. Now, I take it that's a pretty strong feeling you have; is that correct?
22
A. Ever since, you know, I have been old enough and all to really think about it I have felt that way so I would say yes.
23
* * *
24
* * *
25
Q. [Prosecutor] ... The question I want to ask you: Keeping in mind your feelings about the death sentence and the rightness or the wrongness of the death sentence, would you always in every case answer one of these questions no in order to prevent the Judge from assessing the death penalty?
26
A. I believe so.
27
Q. Okay. Remember the Judge asked you for a yes or no answer because of the record and only you can tell us what is in your mind.
28
Let me put it in this light. Are you so against the death penalty that you would always answer one of these questions no in order to prevent the death sentence from being assessed?
29
A. Yes.
30
Q. In every case?
31
A. Yes.
32
Q. And I take it, that's a very strong feeling, as you said, since you have been old enough to think; is that correct?
33
A. Yes.
34
Q. Now, I'm not going to try to change your mind but let's say I did try to change your mind. Could anybody in this courtroom change your mind about your feeling on the death penalty?
35
A. No.
36
* * *
37
* * *
38
Q. [Prosecutor] ... But if you are selected for a jury, if you are qualified for a jury, you have to take an oath to follow the law and once you have taken an oath it's not like a job that you can quit and say, "Hey, this is not what I bargained for. I will find me another job. Can't do it." You are stuck until the end of trial. You may end up doing something that does violence to your insides or your conscience or your soul or your morals or ethics or whatever and we don't want that to happen but the law will not require you to take that oath if you cannot live up to the oath. Do you see what I am saying--if it is going to do violence to you.
39
The question I want to ask you is: Considering your feelings about the death sentence and given the choice of taking that oath or not taking the oath in a capital murder, would you refuse to take the oath?
40
A. Yes.
41
On the basis of this exchange, the state challenged Bradshaw for cause. Defense counsel then was given the opportunity to attempt to rehabilitate Bradshaw. He asked Bradshaw to assume that he had been selected as a juror and had taken the oath and then to elaborate on how he might answer the two special punishment issues.
42
Q. [Defense Counsel] If you were selected as a member of the jury, could you along with the other jurors after the State having proved to the members of the jury at the guilt or innocence phase of the trial could you thereafter be able to answer Special Issues 1 and 2 provided it is proven to you beyond a reasonable doubt?
43
A. Yes, I could answer them.
44
Q. [Defense Counsel] ... If the State proved to you beyond a reasonable doubt, you as a member of the jury, beyond a reasonable doubt that these special issues should be answered yes, could you answer this yes?
45
A. Yes.
46
Q. And by the same token on Special Issue Number 2 whether there is a probability that the Defendant would commit violent acts in the future, the State would also have to prove this to you beyond a reasonable doubt. Could the State ever prove to you beyond a reasonable doubt that in order to answer this Special Issue Number 2 yes?
47
A. That's where--
48
At this point defense counsel interrupted Bradshaw and asked him to consider a hypothetical situation. He then continued his questioning:
49
Q. [Defense counsel] ... Now, I'm not asking you about in this particular case, in that case about the kidnapper and murderer of that campfire girls. If you can think of a crime to be so heinous that you could tell or you could answer the question yes to the Special Issue?
50
A. Can I say yes? I could answer yes to both of them but I don't think, you know, he should get--they should get punished but, you know, death.
51
The trial court, having heard Bradshaw's conflicting responses, asked some questions of its own in an attempt to clarify Bradshaw's position. The court explored the ambiguity in Bradshaw's answers, pointing out that he first said that his scruples against capital punishment were so strong that he would always answer the special issues in such a way that the death penalty would not be imposed and then said that he would answer the issues according to the law and the evidence if he took the juror's oath.
52
THE COURT: So then what you said earlier about having some scruples against the death penalty are not exactly what you led us to believe they are?
53
THE VENIREMAN: Well, I'm not going to lie, you know. If both things are yes and that's the only choice I have and it's been proven I have to answer yes and be honest with the Court and what I know is right as far as the facts in my head, I have to answer yes.
54
THE COURT: So then if you took the oath, if you had a choice of taking that oath to follow the law knowing full well that you have said to us about your feelings about the death penalty, are you telling me now that you would or would not?
55
THE VENIREMAN: I would not take the oath.
56
THE COURT: You would and could take the oath?
57
THE VENIREMAN: I would not take the oath. Either I don't understand or you don't understand. What I am saying if I had to take the oath for some reason and I was in that situation and I saw the facts and it was true I would say yes. But--I would try to avoid taking the oath because I just can't see sentencing someone to death if the situation arose.
58
THE COURT: Okay. The situation will arise if you are chosen as a juror in this case. You will have to vote yes or no. There is no two ways about it. And you know if you take the oath that you will [sic] a true verdict according to the law and the evidence submitted to you, that you are going to have to answer those questions one way or another. And the question they are trying to determine is if it gets down to answering those questions and you have already taken the oath now, you see what I am saying? And you have got to answer those questions one way or another and you have got some feelings against the death penalty and at one point in time you said you don't believe in the death penalty.
59
THE VENIREMAN: I don't but I have to tell the truth, too.
60
THE COURT: What you are saying--
61
THE VENIREMAN: I'm going to follow it.
62
THE COURT: No matter whether it does injury to your conscience and your soul or not?
63
THE VENIREMAN: If that's what I have to do because--
64
THE COURT: You don't have to.
65
THE VENIREMAN: I'm not going to lie.
66
THE COURT: But you don't have to. If your feelings are so strong--we are trying to find out how strong your feelings really are and we are not arguing about it.
67
THE VENIREMAN: I understand that.
68
THE COURT: We need to find out how strong your feelings really are. If your feelings are strong enough that if you take the oath and you are going to follow your oath and it is not going to do damage to your own conscience and your own soul and if you are convinced beyond a reasonable doubt both of those questions should be yes knowing full well if you answer them yes that I am going to assess the death penalty, then you could do that?
69
THE VENIREMAN: If I took the oath, yes, sir, I would have to answer honestly.
70
THE COURT: The next question: would you take the oath?
71
THE VENIREMAN: No, then I would have to put myself in a situation.
72
Ellis maintains that, by questioning Bradshaw as he did, the trial judge was working "to disqualify the juror after he had shown he [was] qualified to sit on the jury" and that this "judicial meddling" constituted a violation of his due process and equal protection rights. In particular, Ellis asserts that the trial judge improperly suggested to Bradshaw that all he needed to do to escape jury service, and thereby avoid any moral dilemma he might have, was to say that he refused to take the juror's oath. The district court agreed, finding that the trial court's line of questioning, in which it "suggested to Bradshaw that refusal to take the oath could be used as a method to avoid the unpleasantness of being forced to deal with his qualms about the death penalty," was impermissible. The court then concluded, however, that such error was harmless. We agree with the result reached by the district court, but not with its reasoning.
73
We do not believe that the trial court's conduct in this case was improper.1 As we previously noted, the trial court explained to the venire members at the outset that those individuals who had a compelling conscientious objection to the law would not be forced to take an oath to follow that law. We believe this was a justifiable, accurate instruction. After Bradshaw told the prosecutor that he would always vote no to one of the special punishment issues to prevent the death penalty from being imposed, he told defense counsel that, if required to be on the jury, he would answer the special issues truthfully. Ellis suggests that Bradshaw's responses to defense counsel's questions somehow trump the answers given to the prosecutor and that, since those responses seemed to qualify him as a juror under Witt, no further questions should have been asked. We disagree. Given the conflict, the trial judge "ha[d] the right, within certain limitations, to pursue a line of questioning designed to flush out [Bradshaw's] true views." O'Bryan v. Estelle, 714 F.2d 365, 382 (5th Cir.1983), cert. denied, 465 U.S. 1013, 104 S. Ct. 1015, 79 L. Ed. 2d 245 (1984).
74
Bradshaw's responses to defense counsel's questions are best understood in the context in which they were given. Defense counsel had asked Bradshaw to assume that he had already taken the oath--to assume that he had sworn to return a verdict based on the law and evidence. Quite understandably, then, when defense counsel asked him what he would do if the evidence convinced him beyond a reasonable doubt that the punishment issues should be answered affirmatively, Bradshaw answered that he would answer truthfully. To do so undoubtedly would do violence to his conscience; not to do so, however, would subject him to the criminal consequences of violating his oath.
75
When the court began asking Bradshaw questions of its own in an effort to resolve the conflict in his answers, it became apparent that he was still operating under the same assumption imposed by defense counsel. Bradshaw told the court that, if he had to take the oath for some reason, he would answer the questions truthfully. The trial court, seeing Bradshaw's confusion, reminded him that no one would be forced to take the oath if to do so would do violence to that person's conscience and soul. It was against this backdrop that Bradshaw stated that he would refuse to take the oath. We see no error here. See Lockett v. Ohio, 438 U.S. 586, 595-96, 98 S. Ct. 2954, 2960, 57 L. Ed. 2d 973 (1978). Contrary to Ellis's assertion that the trial court's remarks were designed to suggest an escape hatch for a troublesome venireman, we believe that the court's comments were intended to and did enable Bradshaw to give a clear statement of his position so that the trial court could better assess his qualifications. Because the trial court clearly could have been "left with the definite impression that [Bradshaw] would be unable to faithfully and impartially apply the law," Witt, 469 U.S. at 426, 105 S.Ct. at 853, we hold that the state's challenge for cause was granted properly.2
III. Procedural Default
76
The state argues that Ellis raises three issues on appeal that are barred from consideration on the merits due to his failure to comply with state procedural rules. Those issues are (1) his challenge to the sufficiency of the evidence to support the indictment's allegation that the manner and means of the victim's asphyxiation were unknown to the grand jury, (2) his claim that Hispanics were excluded systematically from serving on grand juries in Harris County, Texas, and (3) his claim that Hispanics were excluded systematically from serving as grand jury foremen on those same grand juries.
77
In the recent case of Harris v. Reed, --- U.S. ----, 109 S. Ct. 1038, 103 L. Ed. 2d 308 (1989), the Supreme Court made clear that the "plain statement rule" of Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983), applies to cases on federal habeas review. Under Long, review of an issue of federal law is barred if the state court's opinion contains a "plain statement" that its decision rests upon adequate and independent state grounds. 463 U.S. at 1041, 103 S.Ct. at 3476. If a state court's reasons for rejecting a claim are ambiguous, however, federal review is not precluded. Id., 103 S.Ct. at 3476-77. In Harris, the Supreme Court recognized that the problem of ambiguous state court references to state law is common to both direct and habeas review. It therefore adopted "a common solution" to this problem: "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case 'clearly and expressly' states that its judgment rests on a state procedural bar." Harris, --- U.S. at ---- - ----, 109 S. Ct. at 1043, 57 U.S.L.W. at 4226-27 (quoting Caldwell v. Mississippi, 72 U.S. 320, 327, 105 S. Ct. 2633, 2638, 86 L. Ed. 2d 231 (1985)). The Court noted that, as before, when a state court addresses the merits of a claim as an alternative basis for denying relief, a federal court is bound by the state court's reliance on the procedural bar. Harris, --- U.S. at ---- n. 10, 109 S. Ct. at 1044 n. 10.
78
In the state habeas corpus proceeding, the trial court held that Ellis had not preserved properly his claims for review. The court based its holding on the fact that Ellis had failed to raise the sufficiency of the evidence argument on direct appeal as required by Ex parte McWilliams, 634 S.W.2d 815, 818 (Tex.Crim.App.1980), cert. denied, 459 U.S. 1036, 103 S. Ct. 447, 74 L. Ed. 2d 602 (1982), and that he had failed to object to the composition of the grand jury at the earliest time possible as required by state law. See Tex.Code Crim.Proc.Ann. art. 19.27 (Vernon 1977); Muniz v. State, 672 S.W.2d 804, 807 (Tex.Crim.App.1984). The trial court then found, in the alternative, that each of Ellis's contentions failed on its merits. The Court of Criminal Appeals denied relief without written order.
79
Ellis made no effort either in this court or in the court below to avoid imposition of the procedural default doctrine by showing that good cause existed for his failure to comply with the state rules and that actual prejudice resulted. Wainwright v. Sykes, 433 U.S. 72, 84, 97 S. Ct. 2497, 2505, 53 L. Ed. 2d 594 (1977). He does, however, argue that his failure to make a timely objection to the composition of the grand jury should be excused since, while his case was pending, the Supreme Court decided a case in which it held that the systematic exclusion of members of an identifiable group was a defect of constitutional magnitude. See Vasquez v. Hillery, 474 U.S. 254, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986). We find no merit in this argument. Vasquez was by no means the first case to hold that racial discrimination in the selection of grand jurors is constitutionally impermissible. See, e.g., Rose v. Mitchell, 443 U.S. 545, 99 S. Ct. 2993, 61 L. Ed. 2d 739 (1979); Cassell v. Texas, 339 U.S. 282, 70 S. Ct. 629, 94 L. Ed. 839 (1950); Smith v. Texas, 311 U.S. 128, 61 S. Ct. 164, 85 L. Ed. 84 (1940). Accordingly, we hold that Ellis's claims are barred procedurally; however, we add a brief discussion of their lack of merit also.
A. Sufficiency of the evidence
80
The indictment alleged that Ellis "caused the death of Bertie Elizabeth Eakins by asphyxiating the complainant in a manner and means unknown to the Grand Jury." Given this allegation the state was required to prove beyond a reasonable doubt that the grand jury, after efforts to do so, was unable to find out the manner and means by which the victim was asphyxiated. See Brown v. State, 704 S.W.2d 506, 508 (Tex.App.--Dallas 1986, pet. ref'd) (citing Clark v. State, 151 Tex. Crim. 383, 208 S.W.2d 637, 638 (App.1948)). Ellis contends that the state's evidence was insufficient in this regard. If this raises a federal due process question, it lacks merit because the state proved by convincing evidence that the grand jury was indeed unable to discover the manner and means by which the asphyxiation occurred.
81
B. Exclusion of Hispanics from the grand jury
82
Ellis contends that Harris County systematically excludes Hispanics from serving as grand jurors and as grand jury foremen and that this violated his constitutional rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments.3 In order to secure federal habeas relief on this ground, the petitioner must show (1) that he is a member of a race or identifiable group singled out for different treatment under the state laws, as written or applied, (2) the degree of underrepresentation of his group by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors over a significant period of time, and (3) that the selection procedures employed are susceptible to abuse or are not racially neutral. Castaneda v. Partida, 430 U.S. 482, 494, 97 S. Ct. 1272, 1280, 51 L. Ed. 2d 498 (1977). The state concedes that Hispanics constitute a recognizable class singled out for different treatment under the law and that the Texas "key man" method of selecting grand jurors is recognized as susceptible to abuse as applied. It argues, however, that Ellis failed to present competent evidence that showed that Hispanics have not been represented on Harris County grand juries over a significant period time in proportion to their numbers in the general population. We agree. The "evidence" Ellis presented in support of his claim was conclusory at best. This court has held that mere conclusory allegations of discrimination are insufficient to entitle an individual to relief. Enriquez v. Procunier, 752 F.2d 111, 115 (5th Cir.1984), cert. denied, 471 U.S. 1126, 105 S. Ct. 2658, 86 L. Ed. 2d 274 (1985).
83
Ellis's own figures on composition of the grand jury do not entitle him to relief. Ellis contends that Hispanics comprised only 13.7% of those summoned for grand jury duty from February 1978 to November 1982. The state census bureau's figures, offered by the state in response to Ellis's habeas corpus application, show that in 1980 Hispanics comprised 15.3% of the Harris County population. This disparity (1.6%) is insufficient to support an inference of intentional discrimination.
IV. Jury Instructions
84
Ellis asserts that the trial court erred in failing to define the term "deliberately" in its instructions to the jury. This argument is meritless. Both this court and the Texas Court of Criminal Appeals have held that the word "deliberately" in its common meaning is sufficiently clear to allow the jury to decide the special issues on punishment. Thompson v. Lynaugh, 821 F.2d 1054, 1060 (5th Cir.), cert. denied, 483 U.S. 1035, 108 S. Ct. 5, 97 L. Ed. 2d 794 (1987); King v. State, 553 S.W.2d 105, 107 (Tex.Crim.App.1977), cert. denied, 434 U.S. 1088, 98 S. Ct. 1284, 55 L. Ed. 2d 793 (1978).
V. Effective Assistance of Counsel
85
Ellis next alleges that his attorneys rendered ineffective assistance both at trial and on appeal. To prevail on such a claim, a defendant must show that counsel's performance was deficient--or unreasonable in light of prevailing professional norms--and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). We are extremely deferential in our scrutiny of counsel's performance and make every effort to eliminate "the distorting effects of hindsight." Id. at 689, 104 S.Ct. at 2065. We measure appellate counsel's effectiveness by this same standard. Wicker v. McCotter, 783 F.2d 487, 497 (5th Cir.), cert. denied, 478 U.S. 1010, 106 S. Ct. 3310, 92 L. Ed. 2d 723 (1986).
A. Trial Counsel
86
Ellis maintains that he received ineffective assistance at trial due to counsel's failure (1) to investigate the case adequately, (2) to present the defense of insanity, (3) to ascertain the names and addresses of witnesses against Ellis and to interview the same, (4) to object to the racial composition of the petit and grand juries, (5) to request a jury instruction on lesser included offenses, and (6) to request a jury instruction on the term "deliberately." In his state court petition for habeas relief, Ellis alleged these same deficiences on the part of his attorneys. The trial court ordered defense counsel to submit affidavits in response to the claims and, based on those affidavits, the trial court made numerous findings of fact concerning the attorneys' performance. According to 28 U.S.C. Sec. 2254(d), we presume the state court's findings to be correct.
87
The district court addressed at length each ground of error that Ellis raised before deciding that this claim was without merit. Our review of the record convinces us that no other result could have been reached. Therefore, for those same reasons given by the district court, we conclude that Ellis received effective assistance at trial.
B. Appellate Counsel
88
In rather conclusory terms Ellis also alleges that he did not receive effective assistance on appeal. He suggests that the deficiency was in counsel's failure to raise meritorious claims on appeal. The Constitution does not require appellate counsel to raise every nonfrivolous ground that might be pressed on appeal. Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312, 77 L. Ed. 2d 987 (1983). Here it appears that appellate counsel chose to concentrate on the six strongest points of error on appeal; that is a reasonable tactic. Ellis has not directed our attention to any issues that counsel failed to raise upon which he was likely to prevail on appeal. This claim is without merit.
VI. Evidentiary Hearing
89
Finally, Ellis contends that the district court erred in failing to hold an evidentiary hearing to explore his claims that he received ineffective assistance of counsel and that Harris County systematically excluded Hispanics from grand juries. To receive a federal evidentiary hearing, the burden is on the habeas corpus petitioner to allege facts which, if proved, would entitle him to relief. Wilson v. Butler, 825 F.2d 879, 880 (5th Cir.1987), cert. denied, --- U.S. ----, 108 S. Ct. 1059, 98 L. Ed. 2d 1021 (1988). The court need not " 'blindly accept speculative and inconcrete claims' as the basis upon which to order a hearing." Lavernia v. Lynaugh, 845 F.2d 493, 501 (5th Cir.1988) (quoting Baldwin v. Blackburn, 653 F.2d 942, 947 (5th Cir.1981), cert. denied, 456 U.S. 950, 102 S. Ct. 2021, 72 L. Ed. 2d 475 (1982)). Nor is a hearing required when the record is complete or the petitioner raised only legal claims that can be resolved without the taking of additional evidence. Id.
90
Ellis's claim that Hispanics were excluded systematically from Harris County grand juries is certainly a "speculative and inconcrete" claim. As we already determined, Ellis did not and, more importantly, apparently could not allege facts or produce evidence sufficient to make out a prima facie case of discrimination in Harris County's grand jury selection. Therefore, no evidentiary hearing was warranted on that issue. As for his allegations of ineffective assistance of counsel, the state court ordered trial counsel to file affidavits addressing the allegations of ineffectiveness in Ellis's application. On the basis of those affidavits, the trial court made its findings. We have held that the denial of a state writ application on the basis of pleadings and affidavits constitutes an adequate "hearing." Evans v. McCotter, 805 F.2d 1210, 1214 (5th Cir.1986). Ellis made no new ineffectiveness allegations in his federal petition; no additional hearing was required.
91
For the foregoing reasons, the judgment of the district court is AFFIRMED.
JOHNSON, Circuit Judge, dissenting:
92
The majority today concludes that the trial court properly excused venireman Bradshaw for cause. This conclusion, in this writer's mind, is erroneously based on the assumption that the trial court "clearly could have been 'left with the definite impression that [Bradshaw] would be unable to faithfully and impartially apply the law.' " Wainwright v. Witt, 469 U.S. 412, 426, 105 S. Ct. 844, 853, 83 L. Ed. 2d 841 (1985). The above rule of law which was first enunciated by the Supreme Court in Witt does not disturb the essence of the earlier holdings of the Supreme Court in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), and Adams v. Texas, 448 U.S. 38, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980) to the effect that a juror shall not be challenged for cause unless his "views [on capital punishment] would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Witt, 469 U.S. at 420, 105 S.Ct. at 850 (quoting Adams v. Texas, 448 U.S. 38 at 45, 100 S. Ct. at 2526). Against the backdrop of the above standards, the record in this case compels the conclusion that venireman Bradshaw, had he been sworn to take the oath as a juror, would have performed his duties as a juror in accordance with his instructions and his oath. I therefore respectfully dissent from the conclusion of the majority that venireman Bradshaw was properly excused for cause.
93
During voir dire, in response to questions posed by the prosecutor, Bradshaw indicated that he harbored strong feelings disfavoring the death penalty. Responding further to prosecutorial probing, Bradshaw stated "I believe so" when asked whether he would answer "no" to a special issue so as to prevent the imposition of the death penalty. During rehabilitative questioning by defense counsel, however, Bradshaw categorically asserted that if he were sworn as a juror he would "tell the truth" when answering special issues even if the result would be the imposition of the death penalty on the defendant. As I view the record, the prosecutor's questions were designed to elicit Bradshaw's scruples against the death penalty. In contrast, questions from defense counsel sought to establish whether Bradshaw was willing to abide by the law concerning the death penalty if he were sworn as a juror regardless of any personal attitude that he might have regarding capital punishment. After reviewing the record on what must be the essential inquiry of whether Bradshaw could and would have faithfully and impartially applied the law concerning the death penalty, I am convinced that Bradshaw, had he been sworn as a juror, would have done so. When questioned repeatedly about adhering to the juror's oath, Bradshaw pledged that if sworn as a juror he was "going to follow it [the oath]," that he "would have to answer honestly," and that he was "not going to lie." Significantly, even after the trial court reminded Bradshaw of his previously articulated scruples concerning the death penalty, Bradshaw persisted in his assertion that "[i]f I took the oath, yes, sir, I would have to answer honestly."
94
On the basis of the above testimony of Bradshaw, I am unable to join in the conclusion of the majority that Bradshaw could have given the trial court the "definite impression that he would be unable to faithfully and impartially apply the law." Witt, 469 U.S. at 426, 105 S.Ct. at 853. (emphasis supplied). To the contrary, Bradshaw's responses concerning his ability to faithfully and impartially apply the law if selected and sworn as a juror, indicate a remarkable objectivity, honesty and respect for the law particularly when viewed in the light of his admitted reservations regarding capital punishment.
95
In sum, the guarantees afforded a capital defendant by the sixth amendment must not be eroded in the guise of what is characterized as a line of questioning designed to "flush out [a potential juror's] true views." The recognition by the Supreme Court that the "voir dire practice of 'death qualification'--the exclusion for cause, in capital cases, of jurors opposed to capital punishment--can dangerously erode this 'inestimate safeguard [against the overzealous prosecutor and the biased judge]' by creating unrepresentative juries 'uncommonly willing to condemn a man to die'," Wainwright v. Witt, 469 U.S. 412, 439, 105 S. Ct. 844, 860 (Brennan, J., dissenting), is as vital today as it was during Witherspoon's trial. Witherspoon, 391 U.S. 510, 521, 88 S. Ct. 1770, 1776. So long as a potential juror expresses a willingness to abide by the law regardless of his personal views on capital punishment, that juror should not be challenged for cause. Indeed, in the instant case, juror Bradshaw evinced not only a willingness, had he been sworn as a juror, to adhere to the law, but a categorial and resolute determination to do so. It is for this reason that I must respectfully dissent.
1
Were we to conclude that the trial judge engaged in impermissible conduct, we would not be able to conclude, as did the district court, that such was harmless error. See Gray v. Mississippi, 481 U.S. 648, 107 S. Ct. 2045, 2055-57, 95 L. Ed. 2d 622 (1987)
2
Because we have determined that the trial court did not engage in improper questioning of Bradshaw, we do not address Ellis's claim that the trial court's findings are entitled to no presumption of correctness under 28 U.S.C. Sec. 2254(d)
3
Because Ellis uses the same arguments and authorities to support each of his claims, we discuss these issues together | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/867823/ | FILED
NOT FOR PUBLICATION MAY 13 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATHANIEL HOLMES, No. 11-16988
Plaintiff - Appellant, D.C. No. 4:09-cv-05781-PJH
v.
MEMORANDUM*
TENDERLOIN HOUSING CLINIC,
INC.; RANDALL SHAW, Executive
Director, Tenderloin Housing Clinic, Inc.;
KRISTA GAETA, Housing Services
Director, Tenderloin Housing Clinic, Inc.;
SERVICE EMPLOYEES
INTERNATIONAL UNION,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted May 6, 2013
San Francisco, California
Before: W. FLETCHER, GOULD, and CHRISTEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Nathaniel Holmes appeals the district court’s order granting summary
judgment to defendants Service Employees International Union Local 1021
(“SEIU”), Tenderloin Housing Clinic (“THC”), Randall Shaw, and Krista Gaeta.
He also appeals the district court’s dismissal of his claim under the California
Constitution for failure to state a claim. We affirm.
We turn first to Holmes’s claims against the SEIU alone. Holmes cannot
state a claim against the SEIU Local 1021 for violating Article I, Section 8 of the
California Constitution because the union had no “authority to terminate or
disqualify Plaintiff from his employment.” Coleman v. S. Wine & Spirits of Cal.,
Inc., No. 11-00501 SC, 2011 U.S. Dist. LEXIS 131173, at *10 (N.D. Cal. Nov. 14,
2011). Even if he had a qualifying relationship, such a suit would be preempted by
Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. See Miller
v. AT & T Network Sys., 850 F.2d 543, 548 (9th Cir. 1988).
Further, the district court did not err in granting summary judgment to the
SEIU under 42 U.S.C. § 1981 because there is insufficient evidence to support a
conclusion that the union discriminated or retaliated against Holmes because of his
race or for making claims based on race. See Metoyer v. Chassman, 504 F.3d 919,
931, 939-40 (9th Cir. 2007).
2
Turning to Holmes’s claims against THC, the district court did not err in
granting summary judgment as to Holmes’s discrimination claims against the THC
defendants under 42 U.S.C. § 2000e-2 and Cal. Govt. Code § 12940a. Holmes put
forward no direct evidence of racial discrimination sufficient to survive summary
judgment. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121-22
(1985) (“[T]he McDonnell Douglas test is inapplicable where the plaintiff presents
direct evidence of discrimination.”). Holmes thus must put forward indirect
evidence sufficient to satisfy the three-part test in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). While the sworn affidavits Holmes submitted
provide indirect evidence of racial discrimination, Holmes has not demonstrated
that THC’s given reasons for his termination were pretextual. He thus cannot
survive summary judgment under the McDonnell Douglas test. See Cohen v. Fred
Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982).
The district court also did not err in granting summary judgment as to
Holmes’s retaliation claims against THC under 42 U.S.C. § 1981, 42 U.S.C. §
2000e-2, and Cal. Govt. Code § 12940a. Following San Diego Bldg. Trades
Council v. Garmon, 359 U.S. 236, 244 (1959), this court only obtains jurisdiction
over unfair labor practice claims on direct appeal from the NLRB. See 29 U.S.C. §
160(f). Holmes failed to appeal the NLRB’s decision against him, and so we have
3
no jurisdiction over his union-related claims. Further, we agree with the district
court that Holmes did not put forward evidence of company retaliation as a result
of his race-related activities sufficient to create a triable issue of fact.
Finally, the district court did not err in granting summary judgment as to
Holmes’s hybrid fair representation/breach of collective bargaining agreement
claim. Even if the SEIU Local 1021 breached its duty of fair representation by
failing to arbitrate Holmes’s case after it promised to do so, Holmes cannot prevail
because he cannot show that THC breached the contract. See DelCostello v. Int’l
Bhd. of Teamsters, 462 U.S. 151, 164-65 (1983). As above, Holmes’s claim that
THC discharged him due to his union activity is Garmon-preempted, see Buscemi
v. McDonnell Douglas Corp., 736 F.2d 1348, 1350 (9th Cir. 1984), and he has not
created a material dispute of fact as to whether his termination was motivated by
race discrimination.
AFFIRMED.
4 | 01-03-2023 | 05-14-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/867837/ | Filed 5/14/13 P. v. Her CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C069153
Plaintiff and Respondent, (Super. Ct. No. 09F00826)
v.
ZANG HER,
Defendant and Appellant.
John Lone Eagle was found strangled to death with a telephone cord in his
Carmichael bedroom. About $4,000 was missing from his bedroom. DNA consistent
with the genetic profile of defendant Zang Her was found in three places in the house --
on a latex glove that was tangled in the telephone cord around John Lone Eagle‟s neck,
on a pillow in the same bedroom, and in a blood spot on the entryway floor to the house.
Defendant was also linked to John Lone Eagle through defendant‟s wife and an
acquaintance. A jury found defendant guilty of first degree burglary and first degree
murder with the special circumstance that the murder was committed during a burglary.
The jury did not reach a verdict on whether defendant personally used a weapon (the
telephone cord).
1
Defendant appeals from the resulting prison sentence of life without the possibility
of parole, raising three issues relating to the evidence and the jury‟s composition.
Finding no merit in these contentions, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A
The Prosecution’s Case
John Lone Eagle operated a business out of his home in which he bought and sold
foreclosed homes. He employed four or five women to help him, and he transacted a lot
of business in cash, which he kept in the house, oftentimes in plain view.
In the summer of 2004 when he was murdered, John Lone Eagle was in poor
health and was not very mobile. One August morning, an employee arrived at his house
to start work. The door was unlocked and the house had been ransacked. She went into
his bedroom and saw him on the bed with a pillow over his head. When she shook him
and he was unresponsive, she noticed there was blood all over his pillow and shirt. She
called 911.
Police arrived and pronounced John Lone Eagle dead. He had been strangled with
a telephone cord that was still around his neck.
Forensics testing by criminalists Kristie Abbott and Jeffrey Herbert was conducted
on the pillow, the glove, and blood stains found on the ground in the entryway to the
house, on the wall behind the front door, and on the wall of the stairwell.
As to three blood stains on the pillowcase, they contained a mixture of DNA from
two contributors. In one of those samples (DNA 5), the major contributor had a DNA
profile that “was the same” (meaning the profile matched defendant‟s at all 15 designated
loci on the genome) as the reference profile of defendant‟s, and the minor contributor had
a DNA profile that matched John Lone Eagle‟s. In the Asian population, the chance of a
random person having a DNA profile matching defendant‟s was 1 in 150 quintillion. The
two mixed-source samples (DNA 7 and DNA 9) on the pillowcase contained John Lone
2
Eagle‟s DNA profile and alleles from a minor contributor at “two and four” of the 15
loci. “The partial profile for the minor contributor to each mixture is consistent with the
profile of the major contributor to DNA 5.”
As to the glove, it contained defendant‟s DNA on the inside of three fingers that
also contained John Lone Eagle‟s DNA. Defendant‟s and John Lone Eagle‟s DNA were
also detected in a mixture on two other spots on the glove, which also contained an
“additional allele” that indicated there was a third contributor.
As to the blood stain found in the entryway on the ground, it contained about an
even mixture of defendant‟s and John Lone Eagle‟s DNA profiles, as measured by a
formula known as the combined probability of inclusion. The chances that a random
person in the Hispanic population could have been a contributor to the sample were 1 in
140 million. In the African American and Caucasian populations, it would have been
even rarer. When using this formula, criminalist Herbert assumed the entryway blood
sample contained DNA from only two people, both males, and there was no allelic
dropout. Had he not made those assumptions, the numbers would have been “more
common.”
As to the blood stain on the wall in the stairwell, it contained DNA from only one
person -- John Lone Eagle.
As to the blood stain on the wall behind the front door, it contained DNA from an
unknown male.
Besides being linked to John Lone Eagle through DNA, defendant was linked to
John Lone Eagle through defendant‟s wife and through an acquaintance named Derek
Wong. About two months after the murder, police found a piece of paper in Wong‟s
house that contained John Lone Eagle‟s address. In a recorded phone call between
defendant and his wife, defendant admitted being introduced to Wong by his wife.
3
B
The Defense
Defendant worked for a paint store at the time of the murder. As part of his job,
defendant often had to wear latex gloves that were similar to the one found at the crime
scene. Based on this evidence, defense counsel argued that defendant‟s discarded work
gloves were used by the real killer when he murdered John Lone Eagle.
DISCUSSION
I
The Trial Court Was Within Its Discretion To Admit Partial
DNA Profile Evidence Without Accompanying Statistical Analysis
Defendant contends the trial court erred in allowing the People to admit testimony
that a partial DNA profile in two mixed-source samples on John Lone Eagle‟s pillowcase
was consistent with defendant‟s genetic profile. He argues that because the testimony
about those samples was not accompanied by any statistical analysis, it had no probative
value. As we will explain, defendant is wrong.
In California, only relevant evidence is admissible. (Evid. Code, § 350.) Relevant
evidence is that “having any tendency in reason to prove or disprove any disputed fact
that is of consequence to the determination of the action.” (Id., § 210.) An appellate
court reviews a trial court‟s evidentiary rulings for abuse of discretion. (People v.
Venegas (1998) 18 Cal.4th 47, 93.) Here, the trial court ruled that the People‟s expert
could testify the partial DNA profile detected in both mixed-source samples was
consistent with defendant‟s DNA because it was relevant circumstantial evidence of the
perpetrator‟s identity in the context of other DNA evidence. This ruling was well within
the court‟s discretion.
One of the People‟s DNA experts, Kristie Abbott, testified only that the alleles in
the partial profiles were “consistent” (as opposed to being a “match”) with defendant‟s
DNA profile, meaning he could not be excluded as a possible contributor. The
4
prosecutor in closing argument used the same nomenclature when arguing that the alleles
in the partial profile were “consistent” with defendant.1
This evidence and argument was consistent with case law -- both in California and
beyond -- that DNA testimony need not be accompanied by statistical analysis. In
California, Division Five of the First Appellate District upheld admission of testimony
that DNA evidence at the scene “ „belonged to‟ ” the defendant, where the People did not
provide statistical support for that conclusion. (People v. Cua (2011) 191 Cal.App.4th
582, 596, 597, 600.) Other state courts have ruled in cases similar to the one here that
evidence of a partial DNA profile consistent with the defendant‟s profile is relevant and
admissible absent statistical analysis. The Nevada Supreme Court explained it this way:
“DNA nonexclusion evidence is admissible in the absence of supporting statistical data
reflecting the percentage of the population that could be excluded as long as the
nonexclusion evidence is relevant, because any danger of unfair prejudice or of
misleading the jury is substantially outweighed by the defendant‟s ability to cross-
examine or offer expert witness evidence as to probative value.” (Rodriguez v. State
(2012) 273 P.3d 845, 851.) A Missouri appellate court ruled as follows in response to a
defendant‟s contention that, without that statistical analysis, the conclusions of the
People‟s DNA experts were irrelevant and, therefore, inadmissible: “Even though a full
genetic profile was not obtained, the circuit court could rely on the partial profiles that
left [the defendant] as a possible source of the DNA along with the other evidence in
determining guilt. „The weight to be afforded this evidence was within the province of
the [fact-finder] to decide.‟ ” (State v. Harding (2010) 323 S.W.3d 810, 817-818.)
1 Defendant argues the prosecutor took the argument too far by arguing, “You are
also seeing, at least at an extremely low level, alleles that are consistent with defendant
but no other person.” Contrary to defendant‟s suggestion, the phrase “no other person”
referred not to the entire population, but to John Lone Eagle and to other people whose
DNA was tested as part of the investigation in this case.
5
The rationale of these cases applies here. The evidence of the two partial profiles
was relevant because they were consistent with the profile of the major contributor of the
other blood stains on the pillow and therefore had a tendency in reason to show that
defendant murdered John Lone Eagle. Specifically, Abbott testified the three blood
stains on the pillowcase contained a mixture of DNA from two contributors. In one of
those samples (DNA 5), the major contributor had a DNA profile that “was the same” as
the reference profile of defendant‟s, and the minor contributor had a DNA profile that
matched John Lone Eagle‟s. In the Asian population, the chance of a random person
having a DNA profile matching defendant‟s was 1 in 150 quintillion. Abbott further
testified the two mixed-source samples (DNA 7 and DNA 9) contained the victim‟s DNA
profile and alleles from a minor contributor at “two and four” of the 15 loci. “The partial
profile for the minor contributor to each mixture is consistent with the profile of the
major contributor to DNA 5.” Thus, because the partial profile was consistent with the
profile of the major contributor to the other blood stains on the pillow, which bore
defendant‟s profile, it was relevant to support the People‟s theory that defendant killed
John Lone Eagle. The court did not abuse its discretion in admitting the evidence.
II
The Trial Court Did Not Violate Defendant’s Constitutional Rights When It Placed
Certain Restrictions On The Cross-Examination Of The People’s DNA Experts
Defendant contends the trial court violated his federal constitutional rights by
limiting his cross-examining of Jeffrey Herbert about criticism of Herbert‟s statistical
methods in a prior case and of Kristie Abbott about shortcomings at the Sacramento
County crime laboratory (the crime lab) that were unrelated to the work in this case. As
we explain, there was no error.
6
A
Factual Background
Defendant filed a motion requesting he be allowed to impeach Herbert with
evidence of the following: Herbert‟s method of calculating probability statistics was
criticized in a prior case, People v. Smith (06F00122); Herbert incorrectly testified in
Smith the chance of a random person other than the defendant being a contributor to a
mixed-source DNA sample was 1 in 95,000 when it was really 1 in 13; lack of
understanding of statistical analysis of mixed-source samples led to the crime lab‟s
removing him from his position analyzing DNA evidence; Herbert concealed criticisms
of his work (i.e., he falsely testified in Smith that his work was approved following an
administrative review); and he failed a competency exam at the crime lab. Defendant
also requested he be allowed to introduce evidence that audits of the crime lab in 2005
and 2010 uncovered deficiencies that led to delayed reaccreditation. Specifically, there
were insufficient studies of the crime lab‟s internal validation of DNA testing methods;
there was insufficient chain of custody for evidence; there were problems with the scope
of authorization for DNA analysts; the entrance to the biology unit was not secured; and
there were deficient protocols for reducing DNA contamination.
The prosecutor argued that the criticisms of Herbert in Smith were mostly
irrelevant because in Smith, unlike here, it was improper to assume there were only two
donors to the mixed-source sample and there were strong indications of “allelic drop out”
(meaning the sample level was very low so one could not see the complete DNA profile).
Thus, while Herbert‟s use of the combined probability of inclusion method was arguably
inappropriate in Smith, it was not inappropriate here. Explaining to the jury why the two
cases were different would be an undue consumption of time, “basically a trial within a
trial to flesh out these issues.” If the defense wanted to elicit that there were “dings” on
Herbert‟s record, defense counsel could do that in a few, very focused questions on cross-
7
examination. Finally, the testimony in Smith did not show Herbert had lied or misled the
jury when he stood by his random match calculation of 1 in 95,000.
The trial court ruled defense counsel could question Herbert about the
appropriateness of using the combined probability of inclusion method in this case and
about errors in using that method in Smith and whether he received “some outside
criticism,” but it would not permit a “full-blown inquiry” into Smith because it would be
“enormously time consuming . . . [and] illuminating of . . . virtually nothing.” Defense
counsel could not ask Herbert questions suggesting he lied in his testimony in Smith
because the transcripts did not support that he did. Defense counsel could ask Herbert
whether he failed the competency exam, but the prosecutor could then elicit that
thereafter he passed it. Defense counsel could ask whether Herbert‟s DNA case work
had been restricted, but counsel could not elicit the details. As for delays in the
accreditation of the crime lab, the court ruled defense counsel could ask Abbott and
Herbert about those only if the shortcomings cited in the audits had a direct bearing on
the DNA analysis in this case.
At trial, defense counsel briefly cross-examined Herbert. Defense counsel did not
ask Herbert if he made any mistakes in another case that resulted in outside criticism. He
did not ask whether Herbert had failed a competency exam and whether there were
limitations placed on him participating in DNA cases. At trial, during defense counsel‟s
cross-examination of Abbott, he did not ask questions about whether the DNA analysis in
this case could have been compromised by any of the shortcomings cited in the audits.
8
B
The Court’s Limitations On Questioning Herbert And Abbott
Did Not Violate Defendant’s Constitutional Rights
1. Precluding Defense Counsel From Cross-Examining Herbert Regarding
Details Of The Smith Case
Defendant contends the court violated his right to confrontation when it limited its
cross-examination of Herbert about details of the Smith case. As noted, the trial court
ruled defense counsel could question Herbert about the appropriateness of using the
combined probability of inclusion method in this case and about errors in using that
method in Smith and whether he received “some outside criticism,” but it would not
permit a “full-blown inquiry” into Smith because it would be “enormously time
consuming . . . [and] illuminating of . . . virtually nothing.” There was no violation of
defendant‟s right to confront the witnesses against him with this ruling.
The key issue here regarding the validity of the random match probability statistics
for the DNA sample in the entryway was whether the combined probability of inclusion
method was appropriately applied for that sample -- not to a sample in another case. As
to the sample in this case, defense counsel was allowed to elicit testimony from Herbert
that he assumed the entryway blood sample contained DNA from only two people, both
males, and there was no allelic dropout. Had he not made those assumptions, the
numbers would have been “more common.” He was also allowed to elicit that alleles
could be measured with confidence at only seven of the 13 loci. Under the trial court‟s
ruling, defense counsel was also permitted to elicit (although he did not) that Herbert‟s
use of the combined probability of inclusion method under those circumstances was
inappropriate.
Compared to this questioning, asking Herbert about mistakes he made in the Smith
case using the combined probability of inclusion method would have been of little
relevance while having the potential to confuse the issue and take up an undue amount of
9
time. On this record, there was no violation of defendant‟s right to confront the witnesses
against him by limiting this evidence. (Delaware v. Van Arsdall (1986) 475 U.S. 673,
679 [89 L.Ed.2d 674, 683] [trial judges retain wide latitude insofar as the confrontation
clause is concerned to impose reasonable limits on such cross-examination based on
concerns about, among other things, confusion of the issues or interrogation that is only
marginally relevant].)
Similarly, the trial court‟s ruling prohibiting defense counsel from questioning
Herbert about his testimony in Smith did not violate defendant‟s right to confront the
witnesses against him. Contrary to defendant‟s position both at the trial court and on
appeal, the transcript does not show Herbert gave “willfully false testimony” about
criticism of the statistics he provided in Smith. The transcript shows that Herbert
acknowledged there was a “dispute” about the statistics he provided in Smith but that
Herbert stood by his work, finding no errors and that his report was approved by his
supervisor. As the trial court correctly found, defense counsel could not ask Herbert
questions suggesting he lied in his testimony in Smith because the transcripts did not
support that he did. As such, cross-examining him about this testimony in Smith would
not have shed any negative light on Herbert‟s veracity.
2. Precluding Defense Counsel From Cross-Examining Herbert And Abbott
Regarding Deficiencies In The Crime Lab
Defendant contends the court violated his federal right to confront the witnesses
against him when it precluded defense counsel from cross-examining Herbert and Abbott
regarding deficiencies in the crime lab cited in two audit reports. Defendant fails to
acknowledge the court did give defense counsel the opportunity to introduce such
evidence if counsel could establish the shortcomings cited in the audit had a direct
bearing on the DNA analysis in this case. Defense counsel made no attempt to do so in
either cross-examination. Absent that link, evidence about the shortcomings in the audits
would not have had a tendency in reason to help the jury evaluate the reliability of test
10
results reported by Herbert and Abbott in this case. As such, the exclusion did not violate
defendant‟s right to confrontation.
3. No Violation Of Defendant’s Due Process Rights
In an argument related to the two above, defendant contends the court‟s limitations
on his cross-examination of Herbert and Abbott also violated his due process right to
present a defense and to have a fair trial.
Similar to the right to confrontation, a defendant‟s due process right to present a
defense and have a fair trial apply only to “relevant and material” evidence that is of a
significant probative value to the defense. (Washington v. Texas (1967) 388 U.S. 14, 23
[18 L.Ed.2d 1019,1025].) The exclusion of defense evidence on a minor or subsidiary
point does not interfere with these rights. (People v. Hawthorne (1992) 4 Cal.4th 43,
58.) As we have explained, although the trial court placed limits on defense counsel‟s
cross-examination of Herbert and Abbott, defense counsel was still permitted to question
them about all aspects of their DNA testing in this case, a little bit about the testing in
Smith, and any aspect of the crime lab audits that had a bearing on the reliability of that
testing. As we have explained, this was the relevant evidence. As the court allowed
defendant to introduce this evidence, there was no violation of defendant‟s due process
right to present a defense and to have a fair trial.
III
The Trial Court Did Not Err In Dismissing Juror No. 12
Defendant contends the trial court violated his right to a decision by a unanimous
and impartial jury when it dismissed Juror No. 12. He argues the court‟s inquiry:
(1) intruded into the jury‟s deliberative process; and (2) did not reveal grounds to dismiss
the juror because she was merely applying the presumption of innocence.
As we will explain, defendant‟s first argument is forfeited and his second one
lacks merit.
11
A
Background Regarding The Dismissal Of Juror No. 12
The day following the first day of deliberations, Juror No. 6 reported to the bailiff
that Juror No. 12 “had decided on the first day of the trial how she was going to vote.”
“She also said she was going to vote strictly on her feelings . . . there was no point in
talking about [the facts] with the rest of the jurors because she had already made up her
mind on how she was going to vote.”
After conferring with counsel, the court interviewed Juror No. 6, Juror No. 1 (the
foreperson), Juror No. 7, and Juror No. 12. Thereafter, the court ruled Juror No. 12 had
violated its instructions in several respects, “most significantly, by having reached her
conclusion as to this case before the deliberative process even began.” Accordingly, the
court dismissed Juror No. 12, replaced her with an alternate, and instructed the jury to
begin deliberations anew.
B
Defendant Forfeited His Contention That The Court
Conducted An Intrusive Inquiry Into The Jury Deliberations
Defendant contends the court violated his constitutional rights to a fair trial and
impartial jury by conducting an intrusive inquiry into deliberations. Specifically, he
claims the court improperly asked Juror No. 12 about her thought process when it asked
her questions about her “feelings” in the case. Defendant has forfeited this claim by
failing to object to the method by which the court conducted its inquiry.
During the court‟s inquiry of Juror No. 12, defense counsel never objected to the
manner in which the court was questioning her. After the court finished questioning
Juror No. 12 and asked both attorneys for their thoughts, defense counsel argued only that
the juror‟s response about her feelings was “really the very, very, very natural human
process of approaching problems.” When the court suggested that inquiring further with
the other jurors might help determine whether Juror No. 12 was “willing to set that gut
12
feeling aside and listen to the evidence, apply that law and collegi[all]y deliberate with
the other jurors,” defense counsel said, “Right, that inquiry needs to be made; I agree.”
Under these circumstances, where defense counsel did not object to the court‟s
inquiry and even agreed to a similar further inquiry of the other jurors, defendant has
forfeited his argument that the questioning of the juror was improper. (People v. Avila
(2009) 46 Cal.4th 680, 727-728 [defendant forfeited his contention that the trial court‟s
questioning of a juror “was not „even-handed,‟ and that the court „did not adequately
question jurors as to the actual statements made, while delving into the deliberative
process‟ ” because counsel agreed to the questioning and even suggested further
questioning].)
C
The Court Did Not Err In Dismissing Juror No. 12
Defendant contends the court erred in dismissing Juror No. 12 because she was
simply a holdout juror who was passionate and adamant about her opinion. “ „We review
for abuse of discretion the trial court‟s determination to discharge a juror and order an
alternate to serve. [Citation.] If there is any substantial evidence supporting the trial
court‟s ruling, we will uphold it. [Citation.] . . . [H]owever, . . . a juror‟s inability to
perform as a juror “ „must appear in the record as a demonstrable reality.‟ ” [Citation.]‟ ”
(People v. Cleveland (2001) 25 Cal.4th 466, 474.) As we explain, there was no abuse of
discretion here. Juror No. 12‟s inability to perform as a juror was based on substantial
evidence in the form of testimony from three other jurors and Juror No. 12‟s responses to
the court‟s questioning.
There was substantial evidence Juror No. 12 had reached a conclusion about how
the case should be decided even before the deliberative process began and then refused to
deliberate. Specifically, three jurors testified Juror No. 12 had made up her mind before
deliberations began and refused to deliberate. And Juror No. 12 partially confirmed their
version of events.
13
Juror No. 6 testified that Juror No. 12 “had specified from day one she had
decided how she felt about the case and . . . had known from the very first time when she
walked in how she was going to vote.” When other jurors “discussed with her that she
was supposed to be basing her opinions on the facts of the case, she said she knew what
the facts were and she was going with her feeling and she didn‟t care.” When other
jurors started expressing their opinions about the case, Juror No. 12 “was busy doing stuff
in her binder and wasn‟t paying attention anymore, and every time somebody would talk
to her she‟d start yelling.” She mentioned that she did not want to miss her vacation with
her grandson and “didn‟t want this to take too long.”
Juror No. 1 testified that Juror No. 12 had made up her mind from the first day she
walked in. Juror No. 12 said she was basing her opinion on her “feelings” and “intuition”
and “not facts.” When other jurors tried to remind her she needed to work with the other
jurors and discuss all their viewpoints, Juror No. 12‟s response was, “I don‟t care.” She
also mentioned her grandson was coming to town and “she doesn‟t have time to do this.”
Juror No. 7 testified that Juror No. 12 “mentioned the first day, that she had
already decided.” “I‟ve already made up my mind. Nothing anyone says will change my
mind. . . . From the very beginning, I had decided.”
Juror No. 12 somewhat corroborated the testimony of the other jurors when she
testified that “when I came in . . . looking at the defendant and everything that was
presented before me, there was a feeling before the process started.” It was a “gut
feeling” that made her “lean . . . toward a certain decision.” She listened to the court‟s
instructions about “leav[ing] feelings out of this” but she was “not a robot” and felt
“feelings have to come into decision-making” -- those “innate, gut, intuitive feelings that
I cannot just dismiss.” She did mention that her grandson was going to be visiting and
she “want[e]d the deliberation process to go faster than slower.”
Based on these jurors‟ testimony, there was substantial evidence to support the
trial court‟s determination that Juror No. 12 was unable to perform as a juror and
14
therefore no abuse of discretion in excusing her. (See People v. Feagin (1995) 34
Cal.App.4th 1427, 1436-1437 [where several jurors testified that the at-issue juror was
unwilling to participate in the jury discussions, had refused to explain her thoughts, and
had already made up her mind, the court found substantial evidence to support the finding
the at-issue juror was unable to perform her functions as a juror as a demonstrable reality,
and there was no abuse of discretion in excusing her].) Because we have concluded the
trial court did not abuse its discretion in excusing Juror No. 12, her discharge did not
violate defendant‟s constitutional rights. (People v. Lomax (2010) 49 Cal.4th 530, 591.)
DISPOSITION
The judgment is affirmed.
ROBIE , Acting P. J.
We concur:
MAURO , J.
DUARTE , J.
15 | 01-03-2023 | 05-14-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/588210/ | 972 F.2d 204
23 Fed. R. Serv. 3d 501
Robert A. BERDELLA, Appellant,v.Paul K. DELO; Thelma Branson; and Frank J. Murphy,individually and in his official capacity, Appellees.
No. 91-2823.
United States Court of Appeals,Eighth Circuit.
Submitted April 16, 1992.Decided Aug. 4, 1992.Rehearing and Suggestion for Rehearing En Banc Denied Sept.14, 1992.
Craig M. Schmid, St. Louis, Mo., argued, for appellant.
Greg A. Perry, Jefferson City, Mo. and Mary E. Kenney, argued, William A. Lynch, Kansas City, Mo., on the brief, for appellees.
Before JOHN R. GIBSON and BEAM, Circuit Judges, and ARNOLD,* District Judge.
BEAM, Circuit Judge.
1
On October 17, 1989, Robert A. Berdella, then, an inmate at the Potosi Correctional Center (PCC) in Missouri,1 filed a 42 U.S.C. § 1983 complaint against Paul Delo, the superintendent of the PCC, Thelma Branson, the mail room clerk at the PCC, and Frank J. Murphy, the court-appointed trustee of Berdella's estate. On July 11, 1990, the district court granted summary judgment in favor of Murphy based on the rule of res judicata. Nearly a year later, on June 26, 1991, the court granted summary judgment in favor of Delo and Branson based, in part, on qualified immunity. Berdella appeals these orders. We hold that Berdella's notice of appeal is insufficient as to the district court's July 11, 1990, order and affirm the court's June 26, 1991, order.
I. BACKGROUND
2
Berdella is currently serving a life sentence without the possibility of parole or probation. After Berdella's sentencing, Murphy was appointed trustee of his estate pursuant to Missouri state law. See Mo.Ann.Stat. ch. 460 (Vernon 1956 & Supp.1992). Disagreements soon arose between Berdella and Murphy over Murphy's management of the estate. In particular, Berdella objected to limits Murphy imposed on his spending.
3
In an attempt to circumvent Murphy's spending limits, Berdella began to send unstamped third-party correspondence to Murphy instead of stamping the correspondence himself and mailing it directly from the PCC. In response, Murphy twice wrote to the Missouri Department of Corrections (Department), asking the Department to restrict Berdella's mail to him. Under Department policies governing inmate mail then in effect, the Department honored written requests by persons outside the prison not to be sent mail from inmates.2 Although Murphy only sought to prevent Berdella from sending third-party correspondence to him, his letters to the Department were ambiguous and could easily be read as requesting that he not receive any mail from Berdella.3 The Department interpreted Murphy's letters in this manner.4
4
Pursuant to the Department's policy, Berdella was notified about Murphy's request not to receive mail from him. When Berdella later attempted to mail a letter to Murphy, Branson, who knew about the restriction on Berdella's mail, conferred with Delo. Following her discussion with Delo, Branson refused to post the letter and reminded Berdella in writing of Murphy's request. The written reminder also warned Berdella that further attempts to post mail to Murphy would result in disciplinary action.
5
As a result of the continuing dispute between Berdella and Murphy over the management of Berdella's estate, Berdella filed several suits against Murphy. In the present section 1983 action, Berdella alleged that Murphy wrongfully limited his prison spending and directed the prison staff not to post his mail in order to prevent him from serving legal documents on Murphy. Berdella also asserted claims against Delo and Branson, alleging that the restrictions on his mail to Murphy and the threat of disciplinary action violated his constitutional rights.
II. DISCUSSION
A. Murphy
6
Berdella asserts that the district court erred in granting Murphy summary judgment. Murphy counters that we need not reach the merits of this issue because Berdella failed to appeal the district court's July 11, 1990, order dismissing him. We agree. The Federal Rules of Appellate Procedure require a notice of appeal to "designate the judgment, order or part thereof appealed from." Fed.R.App.P. 3(c). Berdella's notice, however, only refers to the district court's June 26, 1991, order. When Berdella filed his notice of appeal, he also filed a document entitled "Motion for Appeal from Full Record." Although the motion indicates that Berdella wished to appeal the "full record," the motion refers in particular to the June 26, 1991, order and only that order. Murphy's name does not appear in the caption of either the notice of appeal or the motion for appeal, and the July 11, 1990, order was not attached to either document.5
7
Berdella urges us to construe his notice of appeal liberally because he is a pro se litigant. He emphasizes that his motion for appeal states he is appealing from the "full record." Although we traditionally construe notices of appeal liberally, particularly those of pro se litigants, an intent to appeal the judgment in question must be apparent and there must be no prejudice to the adverse party. See, e.g., Huston v. Mitchell, 908 F.2d 275, 277 (8th Cir.1990); McAninch v. Traders Nat'l Bank of Kansas City, 779 F.2d 466, 467 n. 2 (8th Cir.1985), cert. denied, 476 U.S. 1182, 106 S. Ct. 2917, 91 L. Ed. 2d 545 (1986); McGowne v. Challenge-Cook Bros., Inc., 672 F.2d 652, 659 (8th Cir.1982). In McAninch, for example, the appellants' notice of appeal failed to list an order granting summary judgment to certain defendants and another order dismissing one of the plaintiffs. We held that intent to appeal these orders was apparent from the procedural history of the case and the inclusion of the orders on the appeal information form. See McAninch, 779 F.2d at 467 n. 2.
8
We do not believe that Berdella's intent to appeal the district court's July 11, 1990, order is apparent from either his notice of appeal or the procedural history of the case. The July 11, 1990, order and the June 26, 1991, order addressed distinct and severable issues. An appeal of one order, therefore, would not inherently imply a desire to appeal the other. Even if we consider Berdella's motion for appeal in evaluating his notice of appeal, the notice still does not evince an intent to appeal the July 11, 1990, order. Berdella cites no authority for the proposition that the words "full record" sufficiently indicate an intent to appeal any and every order issued by the district court in the course of a suit, and we refuse to so hold. Berdella also ignores the fact that his motion for appeal, like his notice of appeal, specifically states that he is appealing the June 26, 1991, order and contains no reference to the July 11, 1990, order.6
9
In addition, the procedural history of this case lends little support to Berdella's assertion that his intent to appeal the July 11, 1990, order was apparent. Although Berdella could not have challenged the order before entry of final judgment unless he received permission for an interlocutory appeal, this fact alone is not dispositive. At the time Berdella filed his notice of appeal, he was also asserting similar claims against Murphy in two separate actions in Missouri state court. See Berdella v. Murphy, No. CV91-5199 (Jackson County, Mo.Cir.Ct.); Berdella v. Murphy, No. CV191-579CC (Cole County, Mo.Cir.Ct.). Given the existence of these state actions, Berdella's failure to include the July 11, 1990, order in his notice of appeal is demonstrative, if anything, of an intent to abandon the federal forum and pursue his claims against Murphy in state court.
10
Berdella's omission of any reference to the district court's July 11, 1990, order in his notice of appeal is more than a mere technical deficiency. Berdella has failed to comply with Rule 3(c) and, as such, we lack jurisdiction to consider his argument that the district court erred in granting Murphy summary judgment. See Yoder v. Nutrena Mills, Inc., 294 F.2d 505, 506 n. 1 (8th Cir.1961); cf. Torres v. Oakland Scavenger Co., 487 U.S. 312, 317, 108 S. Ct. 2405, 2408, 101 L. Ed. 2d 285 (1988) (court of appeals lacked jurisdiction over party in class action where party's name inadvertently omitted from notice of appeal).
B. Delo and Branson
11
Berdella also contends that the district court erred in granting Delo and Branson summary judgment. On appeal, Berdella essentially argues that Delo and Branson interfered with his right to correspond with non-inmates in violation of the First Amendment and denied him meaningful access to the courts in violation of the First and Fourteenth Amendments.7 Delo and Branson respond in part by asserting that Berdella has failed to set forth facts showing a constitutional violation occurred. We agree.
12
In reviewing a district court's grant of summary judgment we apply the same standard as the district court. E.g., Meyer v. Barnes, 867 F.2d 464, 466 (8th Cir.), cert. denied, 493 U.S. 825, 110 S. Ct. 86, 107 L. Ed. 2d 51 (1989). Summary judgment is proper where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The nonmoving party "may not rest upon the mere allegations or denials of [its] pleadings, but ... must set forth specific facts showing there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 1355-56, 89 L. Ed. 2d 538 (1986).
13
Berdella initially claims that the Department's policy honoring a person's request not to receive mail from an inmate violates his First Amendment right to correspond with non-inmates. We disagree. The Supreme Court has held that restrictions on outgoing inmate mail must be generally necessary to protect a legitimate government interest. See Procunier v. Martinez, 416 U.S. 396, 414, 94 S. Ct. 1800, 1811-12, 40 L. Ed. 2d 224 (1974), overruled in part by Thornburgh v. Abbott, 490 U.S. 401, 411-14, 109 S. Ct. 1874, 1880-82, 104 L. Ed. 2d 459 (1989) (limiting Procunier to outgoing mail).8 Applying the Procunier standard, this court held invalid a prison policy that prohibited inmates from corresponding with anyone who had not previously consented to receive mail. Finney v. Arkansas Bd. of Correction, 505 F.2d 194, 211-12 (8th Cir.1974). We indicated in Finney, however, that the government's interest in protecting the public from harassment by inmates would justify prohibiting an inmate from sending mail to persons who have affirmatively requested that mail not be received from an inmate. Id. at 211.
14
We see no reason not to follow Finney here. The Department's policy is generally necessary to serve the government's legitimate interest in protecting the public from harassment. Summary judgment in favor of Delo and Branson as to this aspect of Berdella's First Amendment claim, therefore, is proper.
15
Berdella next asserts that Delo and Branson's enforcement of the Department's policy denied him meaningful access to the courts in violation of the First and Fourteenth Amendment. Although we are concerned with the potential effects of the Department's policy and believe that the policy should contain an exception for mail related to court proceedings, we conclude that Berdella failed to show that he was prejudiced by Delo and Branson's conduct.
16
It is well established that an inmate has a constitutional right to meaningful access to the courts. See, e.g., Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977).9 To assert a successful claim for denial of meaningful access to the courts, however, an inmate must demonstrate that he suffered prejudice. See, e.g., Flittie v. Solem, 827 F.2d 276, 280 (8th Cir.1987); Grady v. Wilken, 735 F.2d 303, 305-06 (8th Cir.1984). In Grady, for example, an inmate alleged that prison officials had denied him meaningful access to the courts when his transfer to a segregated unit for violating prison rules resulted in the loss of his mailing privileges for twenty days. The inmate had a lawsuit pending during this period. We held that the district court properly granted summary judgment to the prison officials because the policy involved was constitutional under Procunier and the inmate had failed to demonstrate that the loss of mailing privileges prejudiced his lawsuit. Grady, 735 F.2d at 305-06.
17
Like the inmate in Grady, Berdella has not shown that the restrictions on his mail denied him meaningful access to the courts. As discussed above, the Department's policy is valid under Procunier and Berdella has failed to show that he suffered prejudice as a result of his inability to communicate with Murphy either as trustee of his estate or as a party-opponent.
18
Although a trustee of an inmate's estate under chapter 460 has a duty to provide for the inmate's support, the primary purpose of the trust is to protect the legitimate claims of the inmate's creditors and to prevent the inmate from wasting the estate. See Berdella v. Pender, 821 S.W.2d 846, 851 (Mo.1991). In managing the estate, the trustee may consider, but need not follow, the inmate's instructions. See Thompson v. Bond, 421 F. Supp. 878, 883 (W.D.Mo.1976). Because litigating every disagreement between the inmate and the trustee would undermine the trust's purpose of avoiding wasting of the estate, the inmate must allege a violation of the trustee's duty, not merely a dislike of the trustee's decisions. Berdella, 821 S.W.2d at 851. Although Berdella is not pleased with how Murphy has managed his estate, he has failed to set forth facts showing he was prejudiced by his inability to communicate with Murphy as trustee of the estate.
19
We also find no prejudice resulting from Berdella's inability to communicate with Murphy as a party-opponent. Although the restriction on Berdella's mail threatened to prejudice his actions against Murphy by interfering with his ability to serve court documents on Murphy, Berdella served several documents through a third-party and has not set forth facts showing he was prejudiced by his alleged inability to serve additional documents through similar or other alternative means. Summary judgment in favor of Delo and Branson on Berdella's claim that he was denied meaningful access to the courts under the First and Fourteenth Amendments, therefore, is proper.
III. CONCLUSION
20
For the reasons stated above, we lack jurisdiction to address Berdella's objections to the district court's order granting summary judgment to Murphy and we affirm the district court's order granting summary judgment to Delo and Branson.
*
The HONORABLE MORRIS S. ARNOLD, United States District Judge for the Western District of Arkansas, sitting by designation
1
Berdella is currently incarcerated at the Jefferson City Correctional Center in Missouri
2
The Department policy in question reads:
There shall be no restrictions on the number of persons to whom an inmate may write nor the number of letters an inmate may mail except as outlined in this procedure.
1
Persons who do not wish to receive mail from an inmate may request in writing that the correspondence be terminated. This will include the parent or legal guardian of any person who is under 18 years of age. The inmate should be informed in writing by institutional staff that the correspondence is not to be continued. Such correspondence should not be resumed unless authorized in writing by the person wishing to resume correspondence
2
Any time a restriction is imposed as noted above, written documentation should be placed in the inmate's classification file
Mo. Dep't of Corrections, Proc. No. IS13-1.1(III)(A).
3
Murphy's first letter, dated May 17, 1989, reads in pertinent part:
Also, I do not want Mr. Berdella's correspondence sent to me. If possible, I would prefer to have just the green check with its description of the item. I do not consider myself Mr. Berdella's censor. If I have questions after receiving a green check I will call you.
Murphy's second letter, undated, reads in pertinent part:
Also, I wrote once before saying that I did not want to receive Mr. Berdella's correspondence. I know this may represent an inconvenience, but I will appreciate your cooperation in this regard.
4
When Murphy later learned about the misunderstanding he clarified his request
5
Berdella also filed an amended notice of appeal on October 2, 1991, well beyond the 30-day limit provided in Rule 4(a). The amended notice referred to several district court orders, including the July 11, 1990, order. This notice, however, was treated as initiating a separate appeal which was dismissed for lack of jurisdiction. The dismissal was without prejudice to Berdella's first appeal. See Berdella v. Delo, No. 91-3460 (8th Cir. Nov. 19, 1991)
6
Berdella additionally contends that his notice of appeal is sufficient because the June 26, 1991, order constitutes a final judgment in which all interlocutory orders, including the July 11, 1990, order merged. Berdella's analysis is correct to the extent that the appeal of a final order permits the review of issues resolved in earlier orders, if proper notice is given. See Drake v. Southwestern Bell Tel. Co., 553 F.2d 1185, 1186 (8th Cir.1977); 15A Wright, Miller & Cooper, Federal Practice & Procedure § 3905.1 (2d ed.1992). Berdella carries this principle too far here, however, in asserting that the appeal of a final order alone also serves as sufficient notice of appeal for separate, distinct issues and theories of recovery addressed in earlier orders
7
The district court did not classify Berdella's claims in the same manner as we do. In particular, the district court never expressly recognized that Berdella's First Amendment arguments asserted more than a violation of his right to correspond with non-inmates. Although the district court rejected Berdella's denial of meaningful access to the courts claim under the Fourteenth Amendment, it held that Berdella's right to correspond under the First Amendment was violated because the Department's policy lacked adequate safeguards to insure that an inmate's communication with a party-opponent was not completely severed. In our view, however, this analysis concerns Berdella's meaningful access to the courts, not his right to correspond. As such, although we affirm the district court's decision, our reasoning differs slightly
8
The district court held that the less-stringent rational basis standard established in Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2261-62, 96 L. Ed. 2d 64 (1987), for reviewing restrictions on an inmate's constitutional rights applied in this case. The court reasoned that Procunier did not apply because the Procunier Court was concerned primarily with the rights of non-inmates to receive mail from inmates. See Procunier, 416 U.S. at 408, 94 S.Ct. at 1808-09. Here, in contrast, the only rights affected were Berdella's because Murphy did not wish to receive mail from Berdella
The district court's reasoning, however, does not fully comport with the Supreme Court's analysis in Thornburgh, which simply drew a distinction between outgoing and incoming mail. The Thornburgh Court applied the less-stringent Turner standard to restrictions on incoming mail because of the heightened security risk presented by such mail, not because only the inmate's rights were affected by the restrictions. See Thornburgh, 490 U.S. at 411-14, 109 S.Ct. at 1880-82. Because we find no heightened security risk presented by outgoing mail to unwilling recipients, we conclude the Procunier standard still applies in the present case.
9
This right may stem from both the First Amendment right to petition and the Fourteenth Amendment rights to due process and equal protection. See Harrison v. Springdale Water & Sewer Comm'n, 780 F.2d 1422, 1427 n. 7 (8th Cir.1986) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/420749/ | 710 F.2d 351
32 Empl. Prac. Dec. P 33,664, 12 Ed. Law Rep. 228
Geraldine G. CANNON, Plaintiff-Appellant,v.UNIVERSITY OF HEALTH SCIENCES/THE CHICAGO MEDICAL SCHOOL, etal., Defendants- Appellees.Geraldine G. CANNON, Plaintiff-Appellant-Cross-Appellee,v.SOUTHERN ILLINOIS UNIVERSITY and Board of Trustees of theUniversity of Illinois,Defendants-Appellees-Cross-Appellants.
Nos. 82-2239, 82-2297 and 82-2298.
United States Court of Appeals,Seventh Circuit.
Argued Feb. 17, 1983.Decided June 14, 1983.As Amended June 16, 1983.Rehearing and Rehearing En Banc Denied July 20, 1983.
John M. Cannon, Chicago, Ill., for plaintiff-appellant.
Stuart Bernstein, Mayer, Brown & Platt, Chicago, Ill., for defendants-appellees.
Before PELL and ESCHBACH, Circuit Judges, and VAN PELT, Senior District Judge.*
PELL, Circuit Judge.
1
The plaintiff-appellant, Geraldine Cannon, appeals from the district court's grant of summary judgment in favor of five medical schools and the individual admissions representatives thereof. Cannon alleges that the medical schools violated her civil rights by discriminating against her application on the basis of age and sex. The district court granted summary judgment as to three of the defendants, University of Health Sciences/The Chicago Medical School (Chicago Medical), Loyola University of Chicago (Loyola), and Rush-Presbyterian-St. Luke's Medical Center (Rush), on the ground of laches. The summary judgments granted the remaining two defendants, Southern Illinois University (SIU) and the Board of Trustees of the University of Illinois (Illinois), were on the ground of mootness.
2
The primary issue on appeal is whether laches precludes Cannon's claims against all five defendants. Two related questions are: (1) whether the defendants are immune from all damage claims; and (2) whether SIU and Illinois can rely on laches as a defense to Cannon's claim pursuant to 42 U.S.C. Sec. 1983.
I. FACTS
A. General Background
3
In the fall of 1974, Cannon applied for admission to the 1975 entering class at every medical school in the state of Illinois. Cannon was then over thirty years of age and an experienced surgical nurse. She was completing her baccalaureate degree at the time she filed the medical school applications. All of the medical schools, including the five named as defendants in this suit, denied Cannon admission.1 Her academic qualifications, including her college grade point average and her score on the Medical College Admission Test (MCAT), were competitive with students who were admitted to the medical schools.2
4
In the summer of 1975, Cannon filed suit against two of the medical schools that had denied her admission, the University of Chicago (Chicago) and Northwestern University (Northwestern). She alleged, inter alia, sex discrimination in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. Sec. 1681 et seq. (Title IX). Specifically, Cannon claimed that her application was denied pursuant to a published admissions policy that discouraged applicants over thirty years of age. She asserted that this policy had an adverse impact on women and failed validly to predict success either in medical school or in practice. In 1979, the Supreme Court, reversing the opinion of this court, held that Title IX provided a private right of action. Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) (reversing and remanding 559 F.2d 1063 (7th Cir.1977)). The remand was limited to consideration of the Title IX claim. The district court again dismissed for failure to allege purposeful discrimination. This holding was affirmed by this court, 648 F.2d 1104 (7th Cir.1981), cert. denied, --- U.S. ----, 103 S.Ct. 1254, 75 L.Ed.2d 482 (1983).
5
In late 1975, Congress passed the Age Discrimination Act of 1975, Pub.L. No. 94-135, 89 Stat. 728 (codified at 42 U.S.C. Secs. 6101-6107) (Age Act). The date on which the Age Act took effect was deferred until the Department of Health, Education & Welfare (HEW) promulgated interpretative regulations in 1979. See 42 U.S.C. Sec. 6102. These regulations specified that age could not be considered by medical schools in making admission decisions. 45 C.F.R. Part 90 (1979). Since the issuance of the regulations, age has not been a factor in the admissions decisions of the defendant medical schools.
6
Two aspects of the medical school admission process are relevant to this appeal. First, in 1977, the MCAT was revised. The sections of the prior MCAT that tested verbal skills and general information were eliminated. The new test was designed to measure more accurately an applicant's problem solving abilities, scientific knowledge, and reasoning skills. All students applying for entrance to medical school in 1980 and subsequent years have been required to submit a score from the "new" MCAT.3 Second, at all pertinent times the defendant medical schools have had a policy of reconsidering applicants for admission only if a new application was filed each year for which reconsideration was sought. This policy was implemented to avoid the accumulation of denied applications. Such a procedure was deemed necessary because of the large volume of annual applications.
B. Administrative Remedies
7
In 1975, the same year Cannon filed suit against Chicago and Northwestern, the Department of Labor notified Rush that Cannon had advised the Department of her intent to sue Rush for a violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. Sec. 626(c). Also in 1975, Cannon filed an administrative complaint against SIU with the Office of Civil Rights.
8
In 1976, Cannon instituted a complaint against Rush with the Office of Civil Rights. The agency obtained data from Rush regarding the admission process applicable to the 1975 entering class. Between 1976 and 1979, there was apparently no communication between any administrative agency and any of the defendants.
9
In 1979, Cannon filed a revised discrimination complaint with the Office of Civil Rights against SIU and Rush. The schools supplied the requested data. The charge was then referred to Washington for a policy consideration.
10
C. Prior Judicial Proceedings on Present Suit
11
On November 29, 1979, Cannon commenced this action. She had been rejected by each school between three years, eight months and nearly five years earlier. Cannon alleged violations of the Equal Protection Clause and of Illinois law. She also sought declaratory and injunctive relief, as well as damages, under both Title IX and the Age Act. Cannon subsequently amended her complaint to add a claim against Illinois and SIU, both state universities, pursuant to 42 U.S.C. Sec. 1983. The Section 1983 claim sought both damages and injunctive relief. The statute of limitations applicable to the claim for damages pursuant to 42 U.S.C. Sec. 1983 had not run at the time this claim was added to Cannon's complaint.
12
On October 13, 1981, the district court held that all claims for damages under Title IX were foreclosed by this court's holding in Lieberman v. University of Chicago, 660 F.2d 1185 (7th Cir.1981), cert. denied, 456 U.S. 937, 1102 S.Ct. 1993, 72 L.Ed.2d 456 (1982). Judge Robson also ruled that Cannon could not rely on the Age Act because the alleged discrimination occurred before the Act was passed by Congress and long before its July 1, 1979, effective date. Finally, the district judge granted summary judgment in favor of SIU, Illinois, Rush, and Loyola on the grounds of laches.4 Judge Robson found the delay between the discriminatory acts and the filing of this suit to be unreasonable. He also found that the admissions criteria of the defendant medical schools had changed significantly since Cannon's 1974 application, particularly in light of the 1977 revision of the MCAT, and that requiring the schools to evaluate Cannon's candidacy on the basis of her 1974 applications would be prejudicial to both the autonomy of the medical schools' admission processes and those applicants who applied, submitted a new MCAT score, and met the admissions criteria in each ensuing year.
13
On June 15, 1982, Judge Robson issued a second memorandum opinion and order. He granted Chicago Medical's motion for summary judgment on the ground of laches, relying on the same analysis articulated in the October 13, 1981 memorandum opinion as to the other four defendants. Judge Robson reconsidered whether Illinois and SIU could rely on laches in defense of Cannon's Section 1983 claim. He held that the Eleventh Amendment foreclosed any damage claim against the state universities but that the statute of limitations applicable to a Section 1983 damage claim nevertheless governed the claims for equitable relief pursuant to Section 1983. Judge Robson therefore vacated his October 13, 1981 ruling that laches barred the Section 1983 claims against SIU and Illinois.
14
Finally, Judge Robson considered whether the Section 1983 requests for injunctive and declaratory relief were moot. He held that they were, reasoning that the effect of the Age Act and the regulations thereunder was the complete termination by the defendants of their age-preference policies. Judge Robson noted that Cannon could obtain the same result as an injunction would ensure if she simply reapplied to the medical schools. The court therefore granted summary judgment for SIU and Illinois on the ground of mootness.
15
Cannon has appealed from the two orders granting summary judgment. On appeal, Cannon urges:
16
(1) that her claims are not moot because the effect of the alleged violation has not been eradicated by interim relief or events;
17
(2) that the doctrine of laches does not bar any of her claims because the delay was reasonable and the defendants were not prejudiced in the conduct of their defense;
18
(3) that damages are available under Title IX and against Illinois and SIU pursuant to 42 U.S.C. Sec. 1983.
19
On cross-appeal, SIU and Illinois assert that laches controls Cannon's Section 1983 claim against them because they are immune from any damage claim and the Section 1983 action is therefore purely equitable.
20
In light of our disposition of this appeal, we need not address the question of mootness.
II. AVAILABILITY OF DAMAGES
21
We first address whether the district court correctly held that Title IX precludes any claim for damages. We then turn to whether the district court erred in holding that Illinois and SIU, as well as the individually named representatives of those two medical schools, were immune from any claim for damages under 42 U.S.C. Sec. 1983 because of the Eleventh Amendment.
A. Availability of Damages under Title IX
22
In Lieberman v. University of Chicago, 660 F.2d 1185 (7th Cir.1981), cert. denied, 456 U.S. 937, 102 S.Ct. 1993, 72 L.Ed.2d 456 (1982), this court was presented with the question whether damages are an available remedy under Title IX. Noting the availability of other remedies, including attorneys' fees, see 42 U.S.C. Sec. 1988, injunctive relief under Title IX, and federal administrative action, see 20 U.S.C. Sec. 1682, and this court's perception that a damage remedy was not entirely consistent with the legislative purpose of Title IX, the Lieberman court held that damages were not an available remedy. 660 F.2d at 1188. Because of that holding, the court expressly declined to consider the appellees' argument that Lieberman had failed to mitigate her damages. Id. at 1188 n. 10.
23
Cannon seeks to distinguish her case from Lieberman on the basis that the failure to mitigate damages, present in Lieberman, is absent here. That argument is unpersuasive as a basis for distinction in light of the Lieberman court's having expressly declined the opportunity to rely on the asserted failure to mitigate. Cannon's other argument in support of her assertion that damages are available under Title IX is premised on a Second Circuit case in which the issue was the availability of damages under Title VI. See Guardians Association of the New York City Police Department, Inc. v. Civil Service Commission, 633 F.2d 232 (2d Cir.1981), cert. granted, 454 U.S. 1140, 102 S.Ct. 997, 71 L.Ed.2d 291 (1982). In light of the clear holding of Lieberman, a case that we decline to reconsider, Cannon's reliance on the analogy to Title VI is misplaced.
24
The district judge was correct in holding that Lieberman precludes any claim for damages based on Title IX.
B. Eleventh Amendment Immunity
25
The district court held that Cannon's damage claims against SIU and Illinois, pursuant to 42 U.S.C. Sec. 1983, were barred by the Eleventh Amendment. The Eleventh Amendment acts as a jurisdictional bar to suit against a state in federal court, absent the state's consent to the suit.5 Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974).
26
Cannon urges that the district court erred because: (1) her claims are against individual representatives of the two schools as well as the schools themselves; (2) no judgment against the schools or their representatives would result in a claim against the state treasury; and (3) even though Illinois and SIU are subject to control by the State, they are not the State itself for purposes of the Eleventh Amendment.
27
SIU and Illinois are recognized as state agencies under Illinois law. Elliott v. University of Illinois, 365 Ill. 338, 6 N.E.2d 647 (1936); Ill.Rev.Stat. ch. 127, Sec. 132.3 a (1977). The powers and duties of the Boards of Trustees are governed by chapter 144 of the Illinois Revised Statutes. The court below, as well as the district court in Love v. University of Illinois, 76 C 954 (N.D.Ill. Feb. 7, 1978), relied upon these factors in concluding that the state universities are immune to any claim for damages by reason of the Eleventh Amendment. Their result is consistent with that reached by the Tenth Circuit in Brennan v. University of Kansas, 451 F.2d 1287, 1290 (10th Cir.1971) (relying on Kansas law).
28
The Eleventh Amendment is applicable even though Cannon has attempted to name individual representatives of the universities, as well as the institutions themselves, as defendants. Cannon's complaint refers only to "John Doe" and "Mary Roe." Even if discovery resulted in Cannon's identifying the individuals and if amending the complaint was held to be consistent with Rule 15(c)(2), Fed.R.Civ.P. 15(c)(2),6 the Eleventh Amendment still bars the claims for damages.
29
In Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), the Court held that the Eleventh Amendment bars a suit "by private parties seeking to impose a liability which must be paid from public funds in the state treasury." Id. at 663, 94 S.Ct. at 1356. Relying on Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945), the Edelman Court reasoned that if the damage award is to be paid by the State, the State is the real party in interest even though individual officials might be named as nominal defendants. 415 U.S. at 663, 94 S.Ct. at 1355. In this case, because the state universities are the alter ego of the State, any damage award chargeable to university assets is an award against the State itself. No authority supports Cannon's argument that this analysis is altered by the possibility that a damage award would be met through insurance proceeds or from federal funds. If Cannon's suit would result in a damage award payable by the universities, it is barred by the Eleventh Amendment.
30
Cannon's allegations pertain to the enforcement, by university authorities, of university policies that allegedly condoned discrimination on the basis of age with a resulting disparate impact on women. Recovery is sought from the institutions, not the individuals. As the Supreme Court observed in Edelman, it is a "virtual certainty [that any damage award will] be paid from state funds, and not from the pockets of the individual state officials who were the defendants in the action." 415 U.S. at 668, 94 S.Ct. at 1358. The district judge correctly held, therefore, that Cannon could not recover damages from Illinois or SIU pursuant to her Section 1983 claim.
31
III. AVAILABILITY OF LACHES TO SIU AND ILLINOIS
32
We next turn to the question raised by the cross-appeal: whether SIU and Illinois can rely upon a defense of laches to Cannon's claim under 42 U.S.C. Sec. 1983.7 In his order of June 15, 1982, Judge Robson held that SIU and Illinois could not assert a defense of laches. The applicable statute of limitations did not bar the claim. The judge stated that because Section 1983 provides for both legal and equitable remedies, the state statute of limitations applicable to a claim for damages under Section 1983 also controls the equitable aspect of the claim. In support, Judge Robson relied primarily on Cope v. Anderson, 331 U.S. 461, 67 S.Ct. 1340, 91 L.Ed. 1602 (1947), and Russell v. Todd, 309 U.S. 280, 60 S.Ct. 527, 84 L.Ed. 754 (1940).
33
The question whether laches governs a Section 1983 action in which legal relief is foreclosed by the Eleventh Amendment bar is a question of first impression in this court. We are also unaware of any precedent in other courts addressing this precise issue. We begin with an analysis of the two Supreme Court cases upon which Judge Robson principally relied.
34
Putting aside for the moment the impact of the Eleventh Amendment, it is important to recognize that both Russell and Cope state only that, in cases of concurrent jurisdiction, the doctrine of laches cannot be applied so as to permit relief when the statute of limitations applicable to the analogous legal claim has run. Russell v. Todd, 309 U.S. 280, 289, 60 S.Ct. 527, 532, 84 L.Ed. 754 (1940) ("when the jurisdiction of the federal court is concurrent with that at law, or the suit is brought in aid of a legal right, equity will withhold its remedy if the legal right is barred by the local statute of limitations " (emphasis added)); Cope v. Anderson, 331 U.S. 461, 464, 67 S.Ct. 1340, 1341, 91 L.Ed. 1602 (1947) ("[a]nd equity will withhold its relief in such a case where the applicable statute of limitations would bar the concurrent legal remedy"). Accord, Nilsen v. City of Moss Point, 674 F.2d 379 (5th Cir.1982), reheard en banc, 701 F.2d 556 (5th Cir.1983).8 The Supreme Court's concern therefore was that laches not be used to extend the applicable time limit in a case of concurrent jurisdiction. Neither Cope nor Russell forecloses the argument that laches may shorten the applicable time limit and, therefore, neither Cope nor Russell precludes reliance by SIU and Illinois on laches in the instant case.
35
Similarly, the relevant precedent in this circuit does not foreclose the applicability of laches to the present case. In Morgan v. Koch, 419 F.2d 993 (7th Cir.1969), the plaintiff had abandoned her equitable claims for rescission and sought only damages in a securities fraud case. The district court had granted the defendants' motion to dismiss on the basis of laches. On appeal, this court held that when a litigant seeks to enforce federal and state rights in law only, the statute of limitations controls. Id. at 996. In dictum, the court stated that, under Cope and Russell, the doctrine of laches would be inapplicable even if the plaintiff Morgan "were still alternatively seeking equitable relief." Id. Nonetheless, the decision of the district court was affirmed because the statute of limitations had run and the court held that Morgan's lack of diligence failed to warrant tolling of the statute.
36
In Baker v. F & F Investment, 420 F.2d 1191 (7th Cir.1970), the plaintiffs sought damages as well as equitable relief pursuant to 42 U.S.C. Sec. 1982. The district court held, inter alia, that the applicable statute of limitations precluded recovery by some members of the plaintiff class. On appeal, the plaintiffs urged that laches rather than the statute of limitations governed. The court rejected that argument, relying on Morgan. 420 F.2d at 1193.
37
The holdings of Morgan and Baker do not foreclose reliance on laches in the present case. Morgan supports the familiar rule that laches do not apply to an action seeking purely legal relief. The result in Baker is no broader than that dictated by Cope and Russell : laches cannot be relied upon so as to permit equitable relief when the statute of limitations on the analogous legal claim bars recovery.
38
Even if one read the dictum in Morgan as controlling, which we decline to do, a claim of laches in the present case is not barred. Although Cannon seeks both legal and equitable relief under Section 1983, any claim to damages is not cognizable, and it legally was not from the inception of the litigation because of the Eleventh Amendment doctrine of sovereign immunity, see Section II(B), supra. The case is therefore purely equitable in nature. Not even the Morgan dictum suggests that a claim of laches is inapplicable in such a situation.
39
Neither Supreme Court nor Seventh Circuit precedent prohibits application of the doctrine of laches to Cannon's Section 1983 claim against SIU and Illinois. The relevant Supreme Court cases govern only the situation in which laches is urged as a means of gaining relief that would be time-barred under the statute of limitations applicable to the analogous legal claim. The Seventh Circuit cases, even if the Morgan dictum is considered, would permit the applicability of laches to a case in which no legal remedy is sought. In this case, the Eleventh Amendment prohibits the district court from entertaining the legal claim. Because the only relief that can be sought is equitable, laches should apply.
IV. APPLICATION OF LACHES
40
In order for laches to bar Cannon's claims against the five defendants, the defendants must demonstrate: "(1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense." Costello v. United States, 365 U.S. 265, 282, 81 S.Ct. 534, 543, 5 L.Ed.2d 551 (1961).9 In a case such as this, in which there is no dispute as to the material facts, the district court's decision that laches bars the action is subject to review by the abuse of discretion standard. See EEOC v. Massey-Ferguson, Inc., 622 F.2d 271, 276 (7th Cir.1980).
A. Lack of Diligence
41
The determination as to whether Cannon demonstrated a lack of diligence in filing this suit turns on whether the delay was both unreasonable and inexcusable. In EEOC v. Massey-Ferguson, Inc., 622 F.2d 271, 276 (7th Cir.1980), this court upheld the district court's finding that a delay of four years, nine months between the time charges were filed with the agency and the time the complaint was filed was unreasonable. Other cases, involving the EEOC as plaintiff and delays ranging from three years, seven months to four years, ten months, have similarly resulted in a finding that the delay was unreasonable. See EEOC v. Liberty Loan Corp., 584 F.2d 853 (8th Cir.1978) (delay of four years, four months); EEOC v. Westinghouse Electric Corp., 450 F.Supp. 792 (E.D.Mo.1978), aff'd in relevant part, 592 F.2d 484 (8th Cir.1979) (delays of three years, seven months to four years, seven months); EEOC v. American Machine & Foundry, Inc., 13 Fair Empl.Prac.Cas. (BNA) 1634 (M.D.Pa.1976) (delay of four years, ten months). In light of the heavy caseload carried by the EEOC, a burden that has been recognized by the Supreme Court, see Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 364, 370, 97 S.Ct. 2447, 2453, 2456, 53 L.Ed.2d 402 (1977), the findings of unreasonable delay in the above-cited cases are particularly significant.
42
In the instant case, Cannon's delay in filing suit ranged from three years, eight months in the case of Illinois (from the date of her second rejection by that medical school) to nearly five years in the case of the other defendants. Massey-Ferguson supports the district court's holding that this was an unreasonable time delay. We next consider whether the delay was excusable.
43
Cannon's primary argument is that she could not file this suit until the question whether Title IX provided a private right of action was resolved in her suit against Chicago and Northwestern. In the patent context, where the issue of other pending litigation is frequently an issue, this court has held that "the existence of other pending litigation over the patent does not automatically excuse delay in the bringing of the suit." Advanced Hydraulics, Inc. v. Otis Elevator Co., 525 F.2d 477, 480 (7th Cir.1975), cert. denied, 423 U.S. 869, 96 S.Ct. 132, 46 L.Ed.2d 99.
44
The relief available to Cannon under 42 U.S.C. Sec. 1983 is identical to that available under Title IX. The uncertainty as to whether Title IX provides for a private right of action, prior to the Supreme Court's holding in 1979 that it does so permit, cannot excuse Cannon's delay in filing suit against SIU and Illinois because she could have sought the same relief pursuant to Section 1983. Judge Robson also correctly rejected Cannon's assertion that she might have been subject to sanctions had she filed the present case under Title IX during the pendency of the appeal in the suit against Chicago and Northwestern. Dismissal of the complaint--and certainly any sanctions against Cannon--would have been inappropriate because the case was against different defendants and alleged causes of action under the Age Act and Section 1983 as well as the Title IX claim. Inclusion of a cause of action based on Title IX could have been justified on the ground that Cannon sought to preserve her rights against these defendants.
45
Cannon's attempts to secure administrative resolution of her claims similarly do not excuse a delay of this length. Her administrative complaints were filed against SIU and Rush in 1975 and 1976. The lack of any agency action compelled Cannon to file a revised discrimination complaint in 1979. It should have been apparent to Cannon long before November, 1979, when this suit was filed, that no administrative resolution was imminent.
46
Judge Robson's determination that Cannon's delay in filing this suit was inexcusable is not erroneous. The district court was correct in concluding that a lack of diligence, the first prong of the showing required for laches, was demonstrated. See Costello v. United States, 365 U.S. 265, 282, 81 S.Ct. 534, 543, 5 L.Ed.2d 551 (1961). We next address whether the defendants demonstrated that they were prejudiced by this unreasonable and inexcusable delay.
B. Prejudice to the Defendants
47
Turning to the second prong of the test for laches, Cannon asserts that the prejudice must be to the defendant's ability to conduct his defense. In support, Cannon cites EEOC v. Massey-Ferguson, Inc., 622 F.2d 271, 275 (7th Cir.1980). The defendants differ with Cannon's narrow reading of the prejudice requirement, relying on language in Holmberg v. Armbrecht, 327 U.S. 392, 396, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946) (quoting Galliher v. Cadwell, 145 U.S. 368, 373, 12 S.Ct. 873, 875, 36 L.Ed. 738 (1892)):
48
Equity has acted on the principle that "laches is not like limitation, a mere matter of time, but principally a question of the inequity of permitting the claim to be enforced--an inequity founded upon some change in the condition or relations of the property or the parties."
49
Although the defendants assert that they are prejudiced by Cannon's delay in filing the instant suit they do not contend on appeal that their ability to defend the action has been diminished. Determining the kind of prejudice that must be demonstrated in the instant action is therefore a critical threshold question.
50
1. Scope of Prejudice.
51
The standard articulated in Massey-Ferguson is predicated on language in Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977), in which the Court held that neither Title VII nor state statutes of limitations set an inflexible limit for the EEOC's filing of an action after exhaustion of its conciliation efforts. Id. at 366, 370-71, 97 S.Ct. at 2454, 2456-57. The Court noted that the absence of inflexible time limitations should not prejudice defendants. After enumerating various procedural safeguards, the Court stated:
52
It is, of course, possible that despite these procedural protections a defendant in a Title VII enforcement action might still be significantly handicapped in making his defense because of an inordinate EEOC delay in filing the action after exhausting its conciliation efforts. If such cases arise the federal courts do not lack the power to provide relief.
53
Id. at 373, 97 S.Ct. at 2458. There is no indication, however, in either the Occidental Life or the Massey-Ferguson opinion that the prejudice standard applicable to laches in a suit filed by a party other than the EEOC need be limited to the defendant's ability to present his defense.
54
First, the Occidental Life opinion did not utilize the term "laches." Instead, the Court referred generally to the power inherent in the federal courts to alleviate any prejudicial impact resulting from delay by the EEOC. 432 U.S. at 373, 97 S.Ct. at 2458. Second, the Occidental Life Court made no reference to, and certainly no attempt to distinguish, cases such as Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946), in which the prejudice prong of the laches defense had been stated more broadly. These factors strongly suggest that both the Supreme Court, in Occidental Life, and this court, in Massey-Ferguson, were merely articulating the rule appropriate to an action in which the EEOC is the plaintiff and that neither court intended its language to limit the availability of laches in a non-EEOC action.
55
This conclusion is further supported by the rationale of Occidental Life. The Court relied upon the unique circumstances surrounding an EEOC case: the relatively short and well defined time limits governing the plaintiff's filing of his charge with the agency, the sizeable backlog of cases handled by the EEOC, and the on-going notice to a potential defendant once the initial charge is filed with the agency. 432 U.S. at 370, 372-73, 97 S.Ct. at 2456, 2457-58. These factors together mandated flexible time limits in any case brought by the EEOC. One aspect of that flexibility is that a court's power to grant relief because of the EEOC's delay is limited to the situation in which the defendant's ability to present a defense is curtailed. These factors are absent, however, in a private action and, as a result, there is no basis for so limiting a court's equitable power to grant relief from delay.
56
The instant appeal is not an action filed by the EEOC, or by any administrative agency. It is a private discrimination suit. Cannon's having sought administrative action against Rush and SIU in 1975 and 1976 does not bring this case within the Massey-Ferguson rule. Whatever notice the two defendants might have received from administrative authorities is insignificant in light of the total lack of communication between the Office of Civil Rights and any defendant between 1976 and 1979. The "on-going communication" that characterized an EEOC action in the view of the Occidental Life court is completely absent in the present case. The sizeable backlog carried by the EEOC, another factor in which the Occidental Life10 Court relied, is irrelevant to this action filed by Cannon.
57
In order to prevail on a defense of laches, the defendants in this case must demonstrate some prejudicial " 'change in the condition or relations of the ... parties.' " Holmberg v. Armbrecht, 327 U.S. 392, 396, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946) (quoting Galliher v. Cadwell, 145 U.S. 368, 373, 12 S.Ct. 873, 875, 36 L.Ed. 738 (1892)), but need not necessarily demonstrate that they are unable to conduct their defense as a result of the delay.
58
2. Prejudice Demonstrated by the Defendants.
59
The prejudice asserted by the defendants is that their admissions standards have changed significantly since Cannon was first rejected. The 1977 revision of the MCAT is largely responsible for the different standards because the new test emphasizes scientific knowledge and problem-solving skills to a greater degree than did the version of the test taken by Cannon. The defendants argue that, as a result, Cannon's position vis a vis other applicants and the defendants has changed. Requiring the defendants to consider Cannon on the basis of her 1974 application would, in their view, impinge upon the defendants' right to select their own students and would operate to the prejudice of other candidates. The defendants also argue that Cannon's admission on the basis of her 1974 application would be detrimental to their policy of requiring annual reapplication by candidates who are not admitted pursuant to their first application to the medical school. The district court held that this uncontroverted showing fulfilled the prejudice prong of the laches defense. We must determine whether the district judge abused his discretion in so holding.
60
The interest of a medical school in selecting its student body is well established. In Regents of the University of California v. Bakke, 438 U.S. 265, 312, 98 S.Ct. 2733, 2759, 57 L.Ed.2d 750 (1978), Justice Powell stated:
61
Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body.
62
On this appeal from a grant of summary judgment, we must assume that, absent enforcement of discriminatory policies by the defendants, Cannon would have been admitted to the defendant medical schools pursuant to the 1974 applications. This does not establish, however, that Cannon would be similarly competitive--or that she would receive an offer of admission--if she took the revised MCAT, reapplied to the medical schools, and was evaluated in comparison with other persons applying in the same year.11 If Cannon were granted the relief she seeks, she would be admitted to medical school without regard to whether she is qualified in comparison with those students entering medical school at the same time as she. For a court to order such action in an area which so vitally concerns the health and well being of every human being could well be an abuse of the court's equitable power. Because medical school facilities are limited, the result might also be a denial of admission to another candidate more qualified than Cannon. These consequences impinge upon the defendants' right to select student bodies of their own choosing and are particularly serious when the purpose of the selection process is to provide training to those persons best qualified to serve society through the practice of medicine.
63
Cannon's assertion that such prejudice in insufficient in light of the remedy granted in Bakke is misplaced. Cannon relies upon the fact that the Supreme Court ordered the Medical School of the University of California at Davis to admit Bakke despite the intervening revision of the MCAT. Cannon's argument overlooks the fact that laches was not asserted in Bakke and therefore any prejudice resulting from revision of the MCAT or other changes in the admission process at Davis was not at issue.
64
The district judge did not abuse his discretion in holding that the defendant medical schools would be prejudiced if they were required to admit Cannon on the basis of her 1974 applications.
CONCLUSION
65
It is well established that a grant of summary judgment may be affirmed on any ground that finds support in the record. Helvering v. Gowran, 302 U.S. 238, 245-56, 58 S.Ct. 154, 157-68, 82 L.Ed. 224 (1937); Miller v. Gateway Transportation Co., 616 F.2d 272, 275 n. 7 (7th Cir.1980). Although we do not reach the question whether the district judge was correct in granting Illinois and SIU summary judgment on the ground of mootness, the summary judgment in favor of those defendants is supported by the district judge's findings, in his order of October 13, 1981, that those defendants were prejudiced by Cannon's unreasonable and inexcusable delay in bringing the present action. The determination of the identity of defendants who will have to answer the complaint of a law suit is left to the plaintiff subject only to very general limitations such as presumed good faith. The choice made by Cannon, although she could have named the present defendants in 1975, was to pursue only Chicago and Northwestern. As a result of her belated filing against the defendants named herein, years after her rejections and the institution of the same type of litigation against Chicago and Northwestern, we decline because of the doctrine of laches to rerun the sands of time back nearly a decade to the status of 1974. Consequently, having considered all arguments urged by Cannon, we hold that the summary judgments granted the defendants on the basis of laches, as well as the district court's holding that Cannon has not asserted any claim for which a legal remedy is available, are affirmed.
66
AFFIRMED.
*
Robert Van Pelt, Senior District Judge for the District of Nebraska, is sitting by designation
1
Cannon reapplied to Illinois the following year. Her reapplication was denied in March, 1976
2
Cannon asserts that her combined grade point average and MCAT score gave her approximately a seventy percent chance of admission to medical school
3
Apparently, the medical schools accepted scores from either the "old" or "new" MCAT for persons seeking to enter medical school in 1978 and 1979
4
Chicago Medical had not joined in the other defendants' motion for summary judgment on the basis of laches
5
Cannon does not argue on appeal that the State consented to suit. The only possible basis of consent would be the statutory provision authorizing the University of Illinois to "sue and be sued." Ill.Rev.Stat. ch. 144, Sec. 22 (1979). We concur with those courts holding that such a statutory provision does not constitute "consent." Hamilton Mfg. Co. v. Trustees of State Colleges, 356 F.2d 599, 601-02 (10th Cir.1966); Love v. University of Illinois, 76 C 954 (N.D.Ill. Feb. 7, 1978)
6
Illinois and SIU urge that such amendment would not be permissible because the statute of limitations has run. See Wood v. Worachek, 618 F.2d 1225, 1230 (7th Cir.1980). We need not decide this question because of our disposition regarding the Eleventh Amendment immunity issue
7
Cross-appeal was the procedure utilized to present to this Court the laches claim although presumably it could have been advanced as an alternative basis for affirming the district court's grant of summary judgment in favor of Illinois and SIU against Cannon
8
Cannon urges that any reliance whatsoever on the Nilsen case is misplaced. We disagree with Cannon's argument that the panel's interpretation of Cope and Russell is dictum. The panel's interpretation of those two cases was an essential step in reaching the holding that the plaintiff was not collaterally estopped from litigating whether the equitable portion of her Section 1983 claim was barred by laches. Similarly, we reject Cannon's contention that the Fifth Circuit panel's analysis of the two Supreme Court cases is in conflict with other circuits. The panel opinion carefully distinguishes those cases that Cannon now urges as in conflict with the Fifth Circuit panel opinion. See 674 F.2d at 387
We do note, however, that Nilsen was reheard en banc. Nilsen v. City of Moss Point, 701 F.2d 556 (5th Cir.1983). The court, en banc, held that res judicata barred consideration of the action based on Section 1983. In footnote, the court expressly stated that, in light of its disposition of the appeal, it need not consider the question of laches. Id. at 564 n. 8. Nothing in the en banc opinion suggests that the Fifth Circuit disagreed with the panel's interpretation of Cope and Russell as addressing only the situation in which laches is urged as a means of extending the time period in which an action can be brought. Pursuant to Circuit Rule 17 of the Fifth Circuit, the panel opinion in Nilsen was vacated upon the granting of the rehearing en banc. This does not preclude our recognizing, however, a reasoned interpretation of the Fifth Circuit panel, particularly in light of the fact that our analysis of Cope and Russell is dictated by the language of those cases and, although in accord with that of the Nilsen panel, in no way depends upon the result reached in Nilsen.
9
In his Memorandum Order of June 15, 1982, Judge Robson stated: "Although laches is an affirmative defense, the length of the delay can give rise to a rebuttal presumption of laches. Miller v. United States, 438 F.Supp. 514, 524 (E.D.Pa.1977). The burden then shifts to the plaintiff to show that the delay was excusable, or that the defendants were not prejudiced." Despite this statement, the court below gave careful consideration, particularly in the order of October 13, 1981, to the arguments asserting prejudice that were advanced by the defendants. We find little indication that the district court resolved the prejudice question by relying on a presumption. Similarly, in evaluating this aspect of the laches defense on appeal, we do not start with a presumption in favor of the defendants but rather evaluate the arguments raised by the defendants with a view to whether the district court abused its discretion in finding that prejudice was demonstrated
10
The circumstances of this case suggest, in fact, that Cannon was not relying on any potential administrative remedy. She filed suit against Northwestern and Chicago prior to or at the same time she first sought administrative action. Further, no administrative complaints were filed against defendants other than Rush and SIU
11
This uncertainty, in fact, appears to be the reason Cannon continues to press for equitable relief in the face of statements by the defendants that she would receive due--and nondiscriminatory--consideration when and if she reapplied | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1537827/ | 6 B.R. 8 (1980)
In re CHATEAU ROYALE, LTD., Debtor.
Bankruptcy No. 79-04135.
United States Bankruptcy Court, N.D. Florida, Pensacola Division.
May 15, 1980.
*9 John E. Venn, Jr., Tampa, Fla., and Samuel J. Zusmann, Jr., Atlanta, Ga., for debtor Chateau Royale, Ltd.
Kenneth R. Ridlehoover, Pensacola, Fla., for creditor, Realty Center, Inc.
OPINION
N. SANDERS SAULS, Bankruptcy Judge.
The facts and status of proceedings with respect to this controversy are as follows: Chateau Royale, Ltd., the debtor in these proceedings, filed its petition under Chapter 11 of Title 11 of the United States Code on October 4, 1979. Preparatory to formulation of its plan, the debtor pursuant to court order sold that certain apartment complex known as Chateau Royale located in Escambia County, Florida, free and clear of all liens except a first and second mortgage on said premises. Prior to the filing of the petition herein, the first mortgage was current, but the second mortgagee had instituted foreclosure proceedings in state circuit court. After considerable litigation with respect to the second mortgagee's complaint for relief from the stay of § 362 in this court, a compromise settlement was approved whereby the property was to be either sold or converted to condominiums in accordance with specified conditions and provisions with respect to time, amounts due, and terms of any such sale or conversion.
As aforesaid, on March 31, 1980, the apartment complex and related miscellaneous items of personalty were sold free and clear of all liens save the first and second mortgages, the latter mortgage being reinstated by agreement of the parties from the proceeds of the sale.
Realty Center, Inc. has asserted a secured claim against the balance of the sale proceeds. Its claim, to which the debtor-in-possession objects, is based upon an alleged third mortgage executed and recorded subsequent to the second mortgage. The mortgage asserted was executed by Chateau Royale, Ltd. securing the original principal sum of $35,000 on September 17, 1976, and was recorded on September 21, 1976, in the official records of Escambia County.
The mortgage as recorded did not contain any legal description of the property to be encumbered. The reference in said mortgage to the property to be encumbered was that property "more particularly described in Schedule `A' hereto attached and by reference made a part hereof". The schedule "A" referred to was not attached and was not filed prior to the institution of these proceedings.
Having considered the pleadings, the evidence, and the argument of counsel, the court hereby enters its findings and opinion.
*10 The issue is whether the defective recording of the subject mortgage by reason of the omission of the aforesaid legal description renders the mortgage invalid and avoidable as against the trustee like rights of the debtor-in-possession pursuant to § 544(a) of Title 11.
Under § 544(a) a trustee or debtor-in-possession occupies the status of an ideal judicial lien creditor, irreproachable and without actual knowledge or notice of any outstanding claim, lien or equity, irregardless of the existence of any actual creditor with knowledge or notice, and also irregardless of any actual knowledge or notice on the part of the debtor, or the trustee or debtor-in-possession personally. 4 Collier, ¶ 544.02 (15th Ed.); 4A Collier, ¶¶ 70.04, 70.52 (14th Ed.); In re American Mortgage and Financial Company, 5 BCD 769 (N.D. Fla.1979).
The acquisition of such status and the conditions upon which such status is attained are matters of federal law. 4 Collier, ¶ 544.02 (15th Ed.); 4A Collier, ¶ 70.49 (14th Ed.); Commercial Credit Co., Inc. v. Davidson, 112 F.2d 54 (5th Cir. 1940). However, the extent of the rights and powers thus acquired is to be determined by state law. 4 Collier, ¶ 544.02 (15th Ed.); 4A Collier, ¶ 70.49 (14th Ed.); Commercial Credit Co. v. Davidson, supra; In re Ludlum Enterprises, Inc., 510 F.2d 996 (5th Cir. 1975); Matter of Clifford, 566 F.2d 1023 (5th Cir. 1978); In re American Mortgage and Financial Company, supra.
The question thus is, what are the rights of the lien creditor under Florida law as to a mortgagee with a deficient or erroneous description in his recorded mortgage?
The Florida recording statute, § 695.01, Fla.Stat., reads as follows:
"No conveyance, transfer or mortgage of real property, or any interest therein . . . shall be good and effectual in law or [in] equity against creditors or subsequent purchasers for a valuable consideration and without notice, unless the same be recorded according to law; . . . "
Although the Florida statute does not specify the kind of creditors it is designed to protect, it is well established that it applies only to a creditor who has reduced his claim to a lien or judgment. See, Carolina Portland Cement Co. v. Roper, 68 Fla. 299, 67 So. 115, 116 (1914); Lusk v. Reel, 36 Fla. 418, 18 So. 582, 584 (1895); Freligh v. Maurer, 111 So.2d 712 (Fla. 2 DCA 1959).
Unlike some states, Florida's recording statute provides for both creditors and subsequent purchasers for value without notice. Under such state recording statute, the class of creditors upon which it operates and protects is composed of those creditors without actual knowledge or notice of either unrecorded or recorded liens. If a lien is recorded, a creditor who has no actual knowledge thereof is still charged constructively with notice. He is thus bound by the record notice and afforded no superior right. If a lien is unrecorded, a creditor who has no actual knowledge cannot accordingly be charged with any constructive notice and, hence, is afforded a superior right against an unrecorded instrument. The effect of § 544(a) is to always place a trustee, or those claiming under a trustee's rights, within the protection of the recording statute when an unrecorded instrument is involved since a trustee is deemed to be without actual knowledge or notice. On the other hand, an ordinary creditor with actual notice gets no protection. But, a trustee must, as any other creditor, be charged with constructive notice in the case of a recorded instrument even though he is without actual notice or knowledge thereof. In re American Mortgage and Financial Company, supra.
This is well stated and demonstrated by a quotation from a relatively old Third Circuit case, Taplinger v. Northwestern National Bank, 101 F.2d 274 (1938), involving a recorded instrument, at page 276;
"In the case before us, the trustee in bankruptcy had the status of an execution creditor without actual notice of secret liens. Consequently, unless the notation of the lien of the pledge upon the certificates of title to the pledged motor *11 vehicles rendered the pledge enforceable as against [levying] execution creditors without actual notice, it was not enforceable against the trustee and the appellee was not entitled to reclaim the pledged vehicles from him."
It is clear that under § 695.01, Fla.Stat., an unrecorded mortgage would be void against a subsequent judgment creditor without actual knowledge or notice such as a trustee. But, here, the mortgage was recorded albeit with a defective and missing description.
Immediately following the attempted description, this language appeared on the face of the subject recorded mortgage:
"This Mortgage is subordinate and inferior to that certain mortgage by and between David J. Kalin and Roberta Kalin, husband and wife, Stanley A. Mallin and Virginia Mallin, husband and wife, and the Florida National Bank at Pensacola, in the original principal amount of $360,000.00, executed April 24, 1964, and recorded in O.R. Book 159, page 469 in Escambia County, Florida, said mortgage subsequently assigned to John Hancock Life Insurance Company on the 31st day of December, 1964, and recorded in Assignment Book 213, at Page 91, in Escambia County, Florida; and that certain Purchase Money Wrap Around Mortgage with Balloon by and between Chateau Royale, Ltd., a Florida Limited Partnership, and David J. Kalin and Charles S. Liberis, as tenants in common in the original principal amount of $525,000.00, executed on September 17, 1976, and recorded in the Public Records of Escambia."
Paraphrasing the language of Taplinger, supra, unless the notation or record of the mortgage renders the same enforceable as against a Florida judgment lien creditor without actual notice, said mortgage is not enforceable against a trustee or debtor-in-possession. With respect to the lack of a description in a mortgage, Florida's courts have said:
"Where land intended to be mortgaged cannot be identified because of a lack of description the mortgage is ineffective unless it is reformed. Fla. Bank & Trust Co. of West Palm Beach v. Ocean & Lake Realty Co., 118 Fla. 695, 160 So. 1 (1935). Therefore, recording a mortgage with no description imparts notice of nothing and defeats the very effect and purpose of recordation. See 28 Fla.Jur., Records and Recording Acts, §§ 42, 44, 52."
Air Flow Heating and Air Conditioning, Inc. v. Baker, 326 So.2d 449, 451 (Fla. 4th DCA 1976).
However, Florida's recording statute is a notice type statute and its courts have interpreted it liberally. As stated by the court in the Air Flow case, supra, at p. 451:
"We are not unmindful of the proposition that reference may be made in a recorded document to a deed or other document for the purpose of aiding any defect or uncertainty created by the recorded instrument. Sapp v. Warner, 105 Fla. 245, 141 So. 124, 143 So. 648, 144 So. 481 (1932); Gradolph v. Ricou, 104 Fla. 237, 139 So. 579 (1932). A creditor or encumbrancer is thereby placed on notice by the reference to such other deed or document to the extent that there is a duty to make further inquiry of that deed or unrecorded document. If a reasonable and prudent person would be apprised of the existence of a right by reference to another document or if reference to another document can supply what clearly and reasonably appears to be an omission or defect in an essential part of the recorded instrument then notice is presumed as a matter of `implied' actual notice. See Sapp v. Warner, supra."
Sapp v. Warner, 105 Fla. 245, 141 So. 124 (1932), is the landmark case in Florida. As stated in Sapp, at page 127:
"Notice is of two kinds, actual and constructive. `Constructive notice' has been defined as notice imputed to a person not having actual notice; for example, such as would be imputed under the recording statutes to persons dealing with property subject to those statutes. `Actual notice' is also said to be of two kinds: (1) Express, which includes what might be called direct information; and (2) implied, *12 which is said to include notice inferred from the fact that the person had means of knowledge, which it was his duty to use and which he did not use, or, as it is sometimes called, `implied actual notice.' (citations omitted) Constructive notice is a legal inference, while implied actual notice is an inference of fact, but the same facts may sometimes be such as to prove both constructive and implied actual notice. (citations omitted).
The principle applied in cases of alleged implied actual notice is that a person has no right to shut his eyes or ears to avoid information, and then say that he has no notice; that it will not suffice the law to remain willfully ignorant of a thing readily ascertainable by whatever party puts him on inquiry, when the means of knowledge is at hand." (citations omitted).
See also, Hardaway Timber Co. v. Hansford, 245 So.2d 911 (Fla. 1st DCA 1971), citing the Sapp case, and Gradolph v. Ricou, 104 Fla. 237, 139 So. 579 (1932) stating that constructive notice includes all recitals, references or matters appearing upon the face of any instrument which forms an essential link in the chain of title.
Whether characterized as constructive notice or implied actual notice, one charged with examination of the record title may be bound by defective, erroneous or incomplete matters of record the discovery of which would lead to a duty to further inquire. The great liberality with which the Florida statute has been interpreted is amply demonstrated by the statement in § 37.01 Boyer, Florida Real Estate Transactions, at p. 718:
"When an instrument is not entitled to record because of defect in execution or acknowledgement, its recordation does not constitute constructive notice. This does not mean that it can be ignored, however. If such an improperly recorded instrument is discovered, or a copy of it is included in an abstract of title concerning the land in question, then such a subsequent purchaser has a type of actual notice and must make inquiry to determine any outstanding interests arising from such instrument. This effect is sometimes referred to as implied actual notice."
Applying Florida's law to the facts at hand, it must be concluded that the debtor-in-possession, as a lien creditor, is bound by the facts in the record suggesting inquiry and cannot prevail so as to render the subject mortgage invalid. It clearly appears from the face of the subject mortgage that, immediately following the language purporting to describe the property to be encumbered, reference or recitals to other recorded documents were made sufficient to place a subsequent creditor or encumbrancer on notice to the extent that there was a duty to make further inquiry. An ordinary prudent examiner would have been alerted to this duty to further inquire, and "if a reasonable and prudent person would be advised of the existence of a right by reference to another document or if reference to another document can supply what clearly and reasonably appears to be an omission or defect in an essential part of the recorded instrument then notice is presumed as a matter of `implied' actual notice". Air Flow Heating and Air Conditioning, Inc. v. Baker, supra.
Having determined that the subject mortgage is valid as against the trustee and that Realty Center, Inc.'s claim is a secured claim with respect to a part of the sale proceeds, attention must now be directed to the amount payable thereunder in addition to the outstanding principle balance of the claim.
Section 506(b) of Title 11 is determinative. It provides:
"To the extent that an allowed secured claim is secured by property the value of which, after any recovery under subsection (c) of this section, is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees, costs, or charges provided under the agreement under which such claim arose."
*13 Thus interest up to the date of sale is and shall be allowable, together with reasonable attorneys' fees in the sum of $2,500.00, to which the debtor does not object, and costs incurred in the amount of $240.45. However, as provided in § 506(b), the amount of the sale proceeds allocable to the secured creditor is subject to the reasonable and necessary costs and expenses incurred in preserving and disposing of the property to the extent that there has been any benefit to the secured claimant pursuant to § 506(c). 4 Collier, ¶ 506.06; 4A Collier, ¶ 70.99, pp. 1234-1243.
Accordingly, the parties are directed to obtain a hearing for determination of such costs and expenses to be deducted, if any.
Order shall issue in accordance herewith. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/697278/ | 56 F.3d 515
100 Ed. Law Rep. 913
In re SCHOOL ASBESTOS LITIGATION.SCHOOL DISTRICT OF LANCASTER; Manheim Township SchoolDistrict; Lampeter-Strasburg School District;and Northeastern School Districtv.LAKE ASBESTOS OF QUEBEC, LTD.; the Celotex Corporation;Raymark Industries, Inc.; Union Carbide Corp.;Asbestospray Corp.; Sprayo-Flake Company; National GypsumCo.; Sprayed Insulation, Inc.; Asbestos Fibres Inc.; DanaCorporation; U.S. Gypsum; U.S. Mineral Products Company;Sprayon Insulation & Acoustics, Inc.; Sprayon ResearchCorp.; Keene Corp.; Worben Co., Inc.; Wilkin InsulationCompany; W.R. Grace & Co.; Owens-Corning Fiber-GlasCorporation; Standard Insulation, Inc.; North AmericanAsbestos Corporation; Cassiar Resources Ltd.; BellAsbestos Mines, Ltd.; Asbestos Corporation Limited;Southern Textile Corp.; Owens-Illinois, Inc.; Turner &Newall Limited; the Flintkote Co.; FibreboardCorporation; GAF Corp.; Uniroyal, Inc., Cape Asbestos;Pfizer, Inc.; Kaiser Cement Corporation; Bes-Tex, Inc.;Georgia-Pacific Corp.; Kaiser Gypsum Company.Board of Directors of City Trusts, Appellant.
No. 94-1820.
United States Court of Appeals,Third Circuit.
Argued March 6, 1995.Decided June 6, 1995.
David A. Gradwohl (argued), and James E. Miller, Philadelphia, PA, for Appellant.
Barry H. Boise (argued), and Alan Klein, Philadelphia, PA, for appellee.
Before: BECKER, SCIRICA and WOOD, Jr.,* Circuit Judges.OPINION OF THE COURT
HARLINGTON WOOD, Jr., Circuit Judge.
1
The Board of Directors of City Trusts [Board] appeals the district court's order finding that the Board and Girard College [College] were included in a certified class involving a nationwide class action suit against Uniroyal and numerous other defendants in regard to the presence of asbestos in public and private schools. Because the district court found the appellants were members of the class, the Board was enjoined from pursuing its own state asbestos lawsuit against Uniroyal. The district court held that the Board, as a member of the class, was bound by the Uniroyal settlement, and under the Anti-Injunction Act, 28 U.S.C. Sec. 2283, it was necessary in aid of the court's jurisdiction to enjoin the appellant's state court action. The Board appeals.
I.
2
The Board was created by a Pennsylvania statute in June 1869 to act as a trustee in administering a number of estates and trusts for the benefit of the City of Philadelphia.1 The estate involved here is the Estate of Stephen Girard, which came into existence in 1831. The Girard Estate is the largest estate and trust owned and administered by the Board. After making numerous gifts to various institutions and individuals, Mr. Girard devised and bequeathed his entire residuary estate to the City of Philadelphia in trust for the creation of an "orphan establishment." In furtherance of the deceased's wishes, Girard College was established as an institution for orphan children in Philadelphia. The Board acts as trustee in managing the Girard Estate and the College. The Board also manages approximately 110 other estates and trusts, which it administers according to the wishes of its benefactors.
3
Girard College initially admitted only white male orphans, but has since expanded its admission criteria to include all minorities and children not considered orphans in the traditional sense (only one absent parent).2 The primary mission of Girard College is to act as a guardian to orphaned children by providing for their full development and nurturing needs. Pursuant to this mission, the orphans not only receive food, clothing, health care and a caring place to live, but in addition, the Board provides them with an education at the College through grade twelve. Most children live on the school grounds only through the school year, while some remain all year. Except for Girard College, the Board does not own or operate any estate or trust which requires the Board to provide educational services to children incident to its primary mission of administering estates and trusts pursuant to its statutory and fiduciary duties.
4
Therefore, due to the Board's unique status in reference to Girard College, many regulatory statutes do not apply, including the Pennsylvania Public School Code. The Board in the past, however, has voluntarily chosen to follow various regulatory standards to protect and benefit the orphan children. In 1988, and in compliance with the Asbestos Hazard Emergency Response Act [AHERA], 15 U.S.C. Sec. 2641 et seq., the Board voluntarily submitted an "Asbestos Management Plan." The Board submitted the Plan on AHERA forms and listed Girard College as an "LEA."3
5
In 1983, the first case was filed in regard to asbestos in public and private schools. In 1984, under the Federal Rules of Civil Procedure Rule 23(b)(3), the district court certified, and the Third Circuit affirmed, the following class:
6
All entities which own or operate in whole or in part any public educational facilities, as defined in Section 198(a)(10) of the Elementary and Secondary Education Act of 1965, 20 U.S.C. Sec. 2854, throughout the United States; and all entities which own or operate in whole or in part any non-public, non-profit elementary or secondary educational facilities, including entities with religious affiliations, in the United States, to the extent that such non-profit entities are owned or operated by one or more non-profit corporations or associations no part of the net earnings of which inures, or may lawfully inure, to the benefit of any private shareholder or individual.
7
Pretrial Order 20. See also In re Asbestos Litigation, 104 F.R.D. 422 (E.D.Pa.1984), aff'd, 789 F.2d 996 (3d Cir.), cert. denied, 479 U.S. 852, 107 S.Ct. 182, 93 L.Ed.2d 117 (1986).
8
In 1988, the class definition was amended and limited to exclude certain schools which were operated by the states:
9
The definition of the litigation class certified in this matter is limited and excludes any elementary or secondary facilities owned or operated by Ohio or Maryland or any other state as a service incidental to the provision by the state of other substantial services.
10
Pretrial Order 110.
11
Shortly after the class was certified, a "Notice of Class Action Relating to School Asbestos Claims" was mailed nationwide to all schools included on a list generated by a market data retrieval organization. The list was not modified to include only the schools that were members of the certified class. Girard College appeared on the list as a "private school." The Board has no records indicating it received this notice or opted out of the class. The Notice provided that if you did not opt out of the class by December 1, 1987, you would be bound by any class judgment.
12
In September 1991, plaintiff members of the class and Uniroyal entered into a Settlement Agreement releasing Uniroyal. This notice was also sent to Girard College. In December 1991, the district court entered final judgment approving the Uniroyal Settlement.
13
In February 1994, the Board instituted a state court action against Uniroyal as well as various architects, contractors and engineers. The Board of Directors of City Trusts v. Ballinger & Associates et al., January Term, 1994, No. 3346. The Board sought recovery for property damages to certain buildings and other structures it owns and operates caused by the presence of asbestos products and materials. The buildings in the state action include Girard College and other commercial buildings located in Girard Square, a city block in Philadelphia. Uniroyal moved for an order restraining the Board from litigating its claims on the basis that the Board is bound by the Uniroyal settlement. In a pretrial order, the district court granted the motion and held that Girard College was a member of the certified class and therefore enjoined under the Anti-Injunction Act, 28 U.S.C. Sec. 2283,4 from maintaining a state action against Uniroyal. The district court held:
14
In this Court's opinion, the Board of City Trusts is a local education agency. It is both public and private. By statute of the Commonwealth of Pennsylvania, it has been created as a City agency. The delegation of the supervision of the Board of City Trusts rests with the Orphans' Court. It is through the City of Philadelphia that that Trust was to be administered.
15
. . . . .
16
It is public in the sense that its actions are actions of the--are state action[s]. It is private in the sense that it was private money that caused the college or other charitable functions to be established and maintained. But it was through the public arm that that intent was to be carried out. So, it is a--as private money going through a state-created agency for the education and the associated growth of young people into adulthood.
17
The Board of City Trusts has identified itself as a local education agency in the AHERA compliance document. It has identified itself in various briefs as an arm of the City. That statute which created the Board of City Trusts shows that it is--it was created as an agency of Philadelphia. It has all the character of a local education agency.
18
The Board appeals the district court's finding that it is a member of the certified class and is thereby enjoined from pursuing its state court asbestos action against Uniroyal et al.
II.
19
The district court's application of the class certification to the Board requires plenary review since it involves the application of the law to the facts. Levendos v. Stern Entertainment, 909 F.2d 747, 749 (3d Cir.1990). Similarly, the review of the district court's decision to enjoin the Board's state court action under the Anti-Injunction Act, 28 U.S.C. Sec. 2283, is also a question of law that requires plenary review. 1975 Salaried Retirement Plan v. Nobers, 968 F.2d 401, 405 (3d Cir.1992); see also Carey v. Pennsylvania Enterprises, Inc., 876 F.2d 333, 337 (3d Cir.1989); Ortiz v. Eichler, 794 F.2d 889, 891-92 (3d Cir.1986).
III.
20
A class must be clearly defined and only members can be legally bound by settlements or judgments in the class action. In re School Asbestos Litigation, 789 F.2d 996, 1005 (3d Cir.), cert. denied, 479 U.S. 852, 107 S.Ct. 182, 93 L.Ed.2d 117 (1986). The parties agree that the initial class certification by the district court can be further divided into two subclasses. Sub-section of the certification order includes all public educational facilities as defined by Section 198(a)(10) of the Elementary and Secondary Education Act of 1965; and Sub-section includes non-public, non-profit elementary or secondary facilities to the extent they are owned or operated by one or more non-profit corporations or associations.5 The district court found that Girard College was a quasi-public and quasi-private educational facility because it was created by the state but funded with private money. It is not disputed, however, that Girard College is excluded from Sub-section of the class certification because it is not a public school as defined by Section 198(a)(1) of the Elementary and Secondary Education Act of 1965. Appellees argue that the Board is a non-profit association that owns and operates Girard College, a private educational facility within the definition of Sub-section . The Board contends, however, it is not a non-profit association, but a state-created agency and Girard College is a charitable trust created by the residuary estate of Stephen Girard's Will. If the Board is a non-profit association, the Board is within the class certification and enjoined from pursuing its state court action. If, however, the Board is a state agency or at least not a non-profit "association", it is not within the class and the Board may maintain its state court action against Uniroyal. Both sides competently argued their positions and attempted to aid this court in its determination of this complicated issue.
21
The relevant part of the class certification, Sub-section , states:
22
[A]ll entities which own or operate in whole or in part any non-public, non-profit elementary or secondary educational facilities, including entities with religious affiliations, in the United States, to the extent that such non-profit entities are owned or operated by one or more non-profit corporations or associations no part of the net earnings of which inures, or may lawfully inure, to the benefit of any private shareholder or individual.
23
Pretrial Order 20 (emphasis added).
24
The center of the dispute focuses on the common usage of the term "association." The Board argues it is a state agency because it was created by a Pennsylvania statute in 1869. Further, the Board contends that the United States Supreme Court in Pennsylvania v. The Board of Directors, 353 U.S. 230, 231, 77 S.Ct. 806, 807, 1 L.Ed.2d 792 (1957), previously found the Board to be a "state agency." That case was a race discrimination claim brought against Girard College. The Court held that for purposes of the Fourteenth Amendment, the actions of the Board were state actions. Id. at 231, 77 S.Ct. at 807. The appellees counter that the finding by the Supreme Court that the Board is a state agency for state action purposes is different from finding that the Board is an agent of the state in the present asbestos litigation. The appellees also point out that in the Board's briefs in previous cases, the Board has labeled itself as an "arm of the City." The district court also labeled the Board as a "City Agency" because it was created for the City of Philadelphia and it is through the city that the trust is to be administered. As a preliminary matter, we doubt that the Board is a city agency. The Board was created by the state for the purpose of administering charitable bequests left to and for the benefit of Philadelphia. Although the Board performs this function for the city, it is neither a part of the city nor responsible to the city. The Board was designed merely to independently carry out this service for the city whenever the city is left sizable estates that require management. The Philadelphia Home Rule Charter Section A-100(a)(3) also explicitly exempts the Board from any relationship with the city.6 The Board of Directors of City Trusts appears, therefore, not to be a city agency.
25
The issue then turns on whether the Board is a state agency and if not, whether it can be labeled a non-profit association. The appellees argue that the term "association" is broad enough to include the Board of Directors of City Trusts. As defined by Black's Law Dictionary, association means "[t]he act of a number of persons in uniting together for some special purpose." Black's Law Dictionary 121 (6th ed. 1990). The appellees view the Board as a group of fifteen members united for the special purpose of administering trusts bequeathed to the City. The appellees contend that to find the Board is not an association would be to contort the common usage of the term. The appellants maintain it can not be an association because it is an agency of the state. The composition of the Board is too unique to resolve the issue by merely labeling it as an association.
26
We must look to state law in defining the structures and powers of non-profit corporations. Federal Election Comm'n v. National Right to Work Comm., 459 U.S. 197, 204, 103 S.Ct. 552, 557-58, 74 L.Ed.2d 364 (1982). Under Pennsylvania law, it remains unclear as to the meaning of a non-profit association. The only statute that comes close to defining the term is 42 Pa.Cons.Stat.Ann. Sec. 8332.1, which concerns non-profit associations in relation to a manager, coach, umpire or referee negligence standard.7 The Board of Directors of City Trusts would not seem to fit within this definition. At all events, we find that for another reason the Board of Directors of City Trusts cannot be an association. The appellees want to label the Board an association while acknowledging that Girard College is a charitable trust. However, in reality, the two are not distinct legal entities. It is stretching the contours of the framework in which the Board was established to label the Board as an association when the Board is acting as a trustee on behalf of a charitable trust. To call the Board an association, would be really calling Girard College an association, which it clearly is not. As is demonstrated in this suit, to sue Girard College, you must sue the Board of Directors as its trustee. The Supreme Court appeared to use a similar analysis when it found the Board to be a state agency. Although it was Girard College which had discriminated against the African-Americans in refusing to admit them to the orphanage, the Court found the Board was acting as a trustee based on the power and authority given to it by state law, and therefore responsible under the Fourteenth Amendment for the College's action. Here the Board is bringing the suit (rather than defending against one), but it is still acting only as a trustee on behalf of Girard College. The Board has the authority to sue and may be sued pursuant to the state statute which created the Board. Although the context of the present litigation is different from the context of the previous Supreme Court suit, the Board acts only as a trustee of Girard College and therefore the same analysis is applicable. Finding that the Board is not an association, it is not included within the certified class and the appellants may proceed with their state court asbestos litigation along with the many others who are also not included in the class against Uniroyal et al. Therefore, the district court must be REVERSED.
*
The Honorable Harlington Wood, Jr., United States Circuit Judge for the Seventh Circuit, sitting by designation
1
The Board's powers are statutorily defined as follows:
All and singular the duties, rights and powers of the city of Philadelphia, concerning all property and estate whatsoever, dedicated to charitable uses or trusts, the charge or administration of which is now or shall hereafter become vested in or confined to the city of Philadelphia, shall be discharged by the said city through the instrumentality of a board composed of fifteen persons, including the mayor of said city, the presidents of the select and common councils for the time being, and twelve other citizens appointed as hereinafter provided, to be called directors of city trusts, who shall exercise and discharge all the duties and powers of said city, however acquired, concerning any such property appropriated to charitable uses, as well as the control and management of the persons of any orphans or others, the objects of such charity, to the extent that the same have been or hereafter may be, by statute law or otherwise, vested in or delegated to the said city for the officers thereof.
Act of June 30, 1869, P.L. 1276, 53 P.S. Sec. 16365, repealed in part, Act of November 19, 1959, P.L. 1526.
2
The Philadelphia Orphans' Court oversees certain aspects of Girard College. Only children who qualify as orphans under the definition established by the Orphans' Court may be admitted to Girard College. See e.g., 20 Pa. Const.Stat.Ann. Secs. 711, 712, 722, 7142
3
"LEA" stands for local educational agency, which is defined as "a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for public elementary or secondary schools in a city, county, township, school district, or other public subdivision of a State, or such combination of school districts or counties as recognized in a State as an administrative agency for its public elementary or secondary schools." 20 U.S.C. Sec. 2891(12)
4
Section 2283 provides:
A court of the United States may not grant an injunction to stay proceedings in a State except as expressly authorized by Act of Congress, or where necessary in the aid of its jurisdiction, or to protect or effectuate its judgments.
5
As mentioned, Pretrial Order 110 amended the initial class certification. The 1988 amendment excludes any "elementary or secondary school facilities owned or operated by any state as a service incidental to the provision by the state of other substantial service." Because we find Sub-section is the relevant section, whether or not the Board is excluded under Pretrial Order 110 need not be reached
6
Section A-100(a)(3) of the Philadelphia Home Rule Charter provides that "[e]xcept as otherwise specifically provided, this charter shall not apply to the Board of Directors of City Trusts and to any institutions operated by it."
7
The statute defines "nonprofit association" as:
An entity which is organized as a nonprofit corporation or nonprofit unincorporated association under the laws of this Commonwealth or the United States or any entity which is authorized to do business in this Commonwealth as a nonprofit corporation or unincorporated association under the laws of this Commonwealth, including, but not limited to, youth or athletic associations, volunteer fire, ambulance, religious, charitable, fraternal, veterans, civic, county fair or agricultural associations, or any separately chartered auxiliary of the foregoing, if organized and operated on a nonprofit basis.
42
Pa.Cons.Stat.Ann. Sec. 8332.1(d) | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/505528/ | 845 F.2d 1360
Fed. Sec. L. Rep. P 93,784, 11 Fed. R. Serv. 3d 580,RICO Bus.Disp.Guide 6956
Andrew L. SMITH, Plaintiff-Appellant,v.Jack R. AYRES, et al., Defendants-Appellees.
No. 87-1388.
United States Court of Appeals,Fifth Circuit.
June 3, 1988.Rehearing Denied July 6, 1988.
F. Dean Armstrong, Flossmoor, Ill., for plaintiff-appellant.
Carl David Adams, Adams & Francis, Dallas, Tex., for Clayton Smith.
Edwin E. Wright, III, Ronald D. Wren, Stradley, Schmidt, Stephens & Wright, Dallas, Tex., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Texas.
Before GARZA, HIGGINBOTHAM, and SMITH, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
1
Andrew Smith sued his brother Clayton and others alleging securities fraud and RICO violations arising out of a fight for control of a family business. The district court dismissed the securities-fraud claims, both those brought individually and those brought on behalf of the corporation. The court also dismissed the RICO claim for inadequate pleading and declined to grant leave to amend. We affirm the judgment on the individual securities claim, but reverse the dismissal of the derivative claim. We affirm the district court's ruling on the RICO claim.
2
* Smith Protective Services is a family-owned corporation in Dallas, Texas. In 1977, Andrew Smith was the President and Chairman of the Board and owned approximately 26 percent of the corporation's stock. The other owners were his mother, Coralie, 22 percent, and his brothers, Clayton and Mark, with 26 percent each.
3
In June, 1977, Andrew accused Clayton of embezzling money from the business and the corporation filed suit. SPS' general counsel and director, Dallas attorney Jack Ayres, represented the corporation. In the settlement of the suit, the corporation released any claim it had against Clayton in exchange for Clayton's agreement to sell his stock back to SPS. After completing the stock redemption, Andrew and Mark each held 35 percent of the outstanding shares, while Coralie held 30 percent. With their combined majority stake, Andrew and his mother had effective control.
4
Andrew alleges (in conclusory terms) that in 1983 Clayton set about to recover his interest in the company, and enlisted the support of Mark and Ayres. The plan was said to be to force the board to reissue Clayton's shares in the company under the theory that the prior settlement agreement had been obtained by fraud. For this purpose, Clayton retained Gerry Wren, a Dallas lawyer. Clayton intended to have Wren send a letter demanding return of his shares.
5
On July 20, Clayton related his plan to Ira Tobolowsky, another Dallas attorney who was also an SPS director. The next day, July 21, Tobolowsky telephoned Jack Ayres twice to discuss Clayton's demand letter. Tobolowsky later called Wren's office and learned that Wren left town without sending the letter. In a conference call that included Tobolowsky, Wren's secretary, and Ayres, Tobolowsky told Ayres that Wren had not sent the letter. Ayres then dictated a letter to Wren's secretary. When Wren's secretary learned that the recorder had failed to record, she called Tobolowsky. Tobolowsky initiated another conference call, and Ayres successfully dictated the letter to another secretary.
6
Later the same day Ayres received the demand letter which bore Wren's signature and which was typed on his firm's stationery. Ayres presented the letter to the Board of Directors and recommended that the Board accede to Clayton's demands. Ayres did not, however, disclose that he was the author of the letter. The Board followed his recommendation by a vote of 7-2, with only Andrew and Coralie opposed. The decision gave Clayton and Mark a 52 percent interest in the corporation. According to Andrew, they have used this control to mismanage the corporation and divert corporate assets for personal gain.
7
When in February, 1986, Andrew entered a plea of "no contest" to an indictment alleging cocaine possession, SPS filed suit in state court to divest Andrew of his shares in the corporation under a Texas law that assertedly prohibits felons from owning an interest in a licensed security agency. A Texas district court granted SPS an injunction requiring Andrew to sell his shares back to the corporation.1 However, this decision was reversed on October 21, 1987, by the Texas Court of Appeals. The appellate court found that SPS had no standing to seek the injunction because SPS was seeking enforcement of a state-agency rule that the agency had not threatened to enforce.2
8
Andrew filed this federal suit alleging that Clayton, Mark and Ayres violated the antifraud provision of Rule 10b-5 of the securities laws3 as well as the Racketeer Influenced and Corrupt Organizations Act.4 The district court dismissed Andrew's individual 10b-5 claim because Andrew did not allege the element of reliance. The court reasoned that because Andrew voted against rescission, he did nothing differently because of the letter. The district court also held that Andrew had no standing to bring a derivative securities claim on behalf of the corporation because of the state court decision divesting Andrew of his shares in SPS; at that time the decision still was pending before the state court of appeals. The district court dismissed Andrew's RICO claim for failure to plead two or more predicate acts of racketeering as required by the statute. The court also refused to grant Andrew leave to amend his complaint, finding that it would waste the resources of the court and the parties.
II
9
* We affirm the district court's dismissal of the securities fraud claims brought by Andrew in his individual capacity. Andrew plead no facts that would support a finding that he relied on the statements he alleges to be fraudulent. As the Supreme Court recently reminded, proof of reliance is essential to a claim under Rule 10b-5 because it "provides the requisite causal connection between a defendant's misrepresentation and a plaintiff's injury."5 Here the district court correctly concluded that Andrew did not adequately plead reliance because even with true disclosure, he still would have voted against the issuance of shares to Clayton.
10
We are not persuaded by Andrew's arguments for a contrary result. We agree with the district court that Andrew is not entitled to a presumption of reliance. Following Affiliated Ute Citizens v. United States,6 this Circuit has recognized that where the gravamen of the fraud is a failure to disclose, as opposed to a fraudulent misrepresentation, a plaintiff is entitled to a rebuttable presumption of reliance.7 The presumption is a judicial creature. It responds to the reality that a person cannot rely upon what he is not told.
11
It follows that the first step in determining whether the Affiliated Ute presumption applies is to identify whether the plaintiff's claim is founded on a fraudulent omission. This in turn depends upon which of the three subsections in Rule 10b-5 forms the basis for the plaintiff's complaint. The Rule makes it illegal to do three things:
12
(1) to employ any device, scheme, or artifice to defraud,
13
(2) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, or
14
(3) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.
15
By the terms of the Rule, a presumption of reliance would not arise where the plaintiff's case is grounded in the second subsection. Subsection two requires disclosure only when necessary to make a statement made not misleading. For this reason, a subsection two claim always rests upon an affirmative statement of some sort, reliance on which is an essential element plaintiff must prove. Non-disclosure is relevant only as it makes the statements either false or misleading. By contrast, under the first and third subsections the duty not to engage in a fraudulent "scheme" or "course of conduct" could be based primarily on an omission. Hence, the presumption could be warranted only under subsections one and three, but not under subsection two.8
16
Andrew's claim is not footed upon a specific subsection. However, even assuming that he has stated his claim under the first or third subsections and assuming that the fraudulent scheme or course of conduct primarily involved omissions, the district court was correct in its conclusion because the presumption was rebutted on the face of Andrew's complaint. As we explained in Shores v. Sklar,9 the presumption of reliance is rebutted when the complaint admits that the plaintiff did not actually rely on defendant's alleged omission.10 This principle applies here because the complaint admits that Andrew voted against issuing shares to Clayton.
17
We also reject the argument that even though Andrew's vote may have been unaffected by the Wren letter, he relied on the letter because had the fraud been disclosed, he would have sought an injunction against the Board's action. The theory is internally inconsistent: had the Wren letter not been presented or had it been presented with disclosure of its true author, there would have been no fraud on which to base injunctive relief. The only authority offered to support the theory is a line of cases in which fraudulent actions by controlling shareholders in merger transactions were held to be material because true disclosure would have led minority shareholders to seek their state-law appraisal remedies.11 In those cases, however, the shareholders' remedy would not have been eliminated by the sought-for disclosure. In short, nothing in Andrew's complaint indicates that his individual actions were affected in any way by the alleged fraud.
18
Although the district court never reached the issue, the court also could have dismissed Andrew's individual securities-fraud claim because Andrew failed to allege that he was a "purchaser or seller" of securities. As the Supreme Court held in Blue Chip Stamps v. Manor Drug Stores,12 such an allegation is essential to the plaintiff's standing in an action under Rule 10b-5. Yet Andrew did not buy or sell anything in connection with the disputed transaction. The fact that he was a stockholder in a corporation that may have bought or sold is not sufficient to give him standing in an individual capacity.13
B
19
Although Andrew did not allege that he relied, the complaint alleged that the corporation's decision to issue shares to Clayton was based on the Wren letter; and, unlike Andrew, the corporation might be considered a "purchaser or seller" of securities.14 The district court dismissed the derivative claim, however, on the basis of the state court judgment divesting Andrew of his shares in SPS. Because the state judgment has since been reversed, Andrew now has standing to pursue the derivative claim. Hence, we reverse the district court's judgment on the derivative claim and remand for further proceedings.
20
However, while the complaint stated a derivative securities-fraud claim against Ayres, we find that the pleading failed sufficiently to allege securities fraud on the part of Clayton or Mark Smith. We have adopted the prevailing view that the particularity requirement of Rule 9 applies to securities-fraud claims.15 Conclusory allegations of a defendant's involvement are not enough to survive dismissal for failure to state a claim.
21
Judged by these standards, Andrew's complaint failed to state a claim against Clayton and Mark as direct participants in any fraud against SPS. Except for the general allegation that Clayton initiated the plan to regain control of SPS by fraudulent means, the complaint makes no particularized allegations of Clayton's actual involvement in the plan's execution. Nowhere in the complaint does Andrew allege that Clayton assisted in the preparation of the Wren letter or in its presentation to the SPS Board of Directors. The allegations of Mark's involvement are even thinner and are limited to the following statement:
22
Defendants Clayton and Mark Smith were active participants in, or, in the alternative, were aiders and abetters with Defendant Ayers in the fraudulent conduct described above. The acts, failures to act, and knowledge of Defendant Ayres are imputed to Defendants Clayton Smith and Mark Smith.
23
The allegation that Clayton and Mark used their control of SPS for personal gain, standing alone, is not sufficient to constitute a claim that they acquired this control through securities fraud.
24
Nor is the complaint sufficient to allege that Clayton and Mark were indirect participants in a fraudulent scheme. A claim that defendant aided and abetted a violation of Rule 10b-5 requires the plaintiff allege, at the very least, that a securities violation occurred; that the defendant was generally aware of his or her participation in improper activity; and that the defendant rendered substantial and knowing assistance.16 Even generously construed, Andrew's complaint alleged no facts supporting an inference of substantial or knowing assistance. Hence, the securities fraud claims against Clayton and Mark were properly dismissed.
III
25
The district court found that Andrew failed adequately to plead the elements of a RICO claim because the complaint did not identify at least two predicate acts of criminal activity.17 Although Andrew admitted before the district court that his complaint was inadequate in this regard, he contends that as stated in his complaint, the facts surrounding the Wren letter included at least two predicate acts, and that he should have been given the opportunity to amend his complaint to identify those acts specifically.18
26
By our reading of the complaint, Andrew alleged at most one predicate act, the derivative securities-fraud claim.19 The only other possible predicate act would have been a violation of the federal wire-fraud statute, which reads:
27
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire ... communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined not more than $1,000 or imprisoned not more than five years, or both.20
28
As several courts have recognized, the statute requires that the wire communication cross state lines.21 Although this circuit never has faced an indictment or complaint alleging federal wire-fraud on the basis of telephone calls made within a single state, our rulings consistently have presumed that a purely intrastate communication would be beyond the statute's reach.22 The two calls described in Andrew's complaint were made between telephones within the city of Dallas; Andrew alleges no interstate communication that occurred in connection with the issuance of securities to Clayton. Hence, Andrew's complaint contained no reference to any act that could have constituted a violation of the wire-fraud statute. For this reason, we affirm dismissal of the RICO claim.
IV
29
In a separate opinion, the district court denied Andrew leave to amend his complaint. We review this denial, which is governed by Fed.R.Civ.P. 15(a), under an abuse of discretion standard.23 "In the exercise of its discretion, the district court may consider such factors as prejudice to the opposing party, undue delay, repeated failure to cure deficiencies with prior amendment, bad faith, dilatory motive and futility of amendment."24
30
Andrew has already filed an original complaint and two amended complaints. Nevertheless, even in his latest proposed amendments he fails to remedy the most basic deficiencies in his earlier complaints. Under these circumstances, the trial court did not abuse its discretion in denying leave to amend.
31
AFFIRMED in part and REVERSED in part and REMANDED.
1
Smith Protective Services, Inc. v. Texas Board of Private Investigators & Private Security Agencies, No. 397,625 (Dist.Ct. of Travis County, 261st Judicial Dist., July 14, 1986)
2
See Smith v. Smith Protective Services, Inc., No. 3-86-064CV, slip op. at 2 (Tex.App.--Austin, Oct. 21, 1987)
3
Securities Exchange Act of 1934, Sec. 10(b), 15 U.S.C. Sec. 78j(b); Rule 10b-5, 17 C.F.R. Sec. 240, 10b-5
4
18 U.S.C. Secs. 1961-68
5
Basic Inc. v. Levinson, --- U.S. ----, 108 S. Ct. 978, 989, 99 L. Ed. 2d 194 (1988)
6
406 U.S. 128, 153-54, 92 S. Ct. 1456, 1472, 31 L. Ed. 2d 741 (1972)
7
See Shores v. Sklar, 647 F.2d 462, 468 (5th Cir.1981) (en banc), cert. denied, 459 U.S. 1102, 103 S. Ct. 722, 74 L. Ed. 2d 949 (1983); Finkel v. Docutel/Olivetti Corp., 817 F.2d 356, 359-60 (5th Cir.1987), cert. denied, --- U.S. ----, 108 S. Ct. 1220, 99 L. Ed. 2d 421 (1988); see also Rifkin v. Crow, 574 F.2d 256, 262 (5th Cir.1978) ("where a plaintiff alleges deception by defendant's nondisclosure of material information, the Ute presumption obviates the need for plaintiff to prove actual reliance on the omitted information.")
8
This distinction has occasioned some confusion in the courts. Indeed, by discussing the Affiliated Ute presumption in the context of a Rule 10b-5(2) claim, our en banc opinion in Shores might have implied that the distinction does not exist. See Shores, 647 F.2d at 468. Yet, the holding of the case, as we made clear, was only that "[i]f the Ute presumption applie[d] to the[ ] disclosures," it had been rebutted by plaintiff's admissions. Id. (emphasis added). Moreover, a recent panel has reaffirmed the distinction:
[T]he division of 10b-5 actions into these two categories is justified by the Rule itself. Cases involving primarily a failure to disclose implicate the first and third subsections of Rule 10b-5; cases involving primarily a misstatement or failure to state a fact necessary to make statements made not misleading implicate the second subsection (which is the only subsection of the Rule that specifically mentions the active misrepresentation concept of prohibited conduct).
Finkel, 817 F.2d at 359-60 (footnote omitted).
9
647 F.2d 462 (5th Cir.1981) (en banc)
10
Id. at 468
11
See Alabama Farm Bureau Mutual Casualty Co. v. American Fidelity Life Ins. Co., 606 F.2d 602, 613 (5th Cir.1979); Goldberg v. Meridor, 567 F.2d 209, 217-20 (2d Cir.1977)
12
421 U.S. 723, 95 S. Ct. 1917, 44 L. Ed. 2d 539 (1975)
13
See Rathborne v. Rathborne, 683 F.2d 914, 919 n. 16 (5th Cir.1982) ("where a corporation has been defrauded in a securities transaction, a shareholder does not have standing to bring a direct action under Rule 10b-5") (emphasis retained); see also Blue Chip Stamps, 421 U.S. at 738, 95 S.Ct. at 1926
14
We have held that a corporation's issuance of its own treasury shares is a "sale." Rekant v. Desser, 425 F.2d 872, 877 (5th Cir.1970); Broad v. Rockwell Intern. Corp., 614 F.2d 418, 437 (5th Cir.1980). Even if the transaction was characterized as a "rescission" of the prior repurchase rather than a new issue, the "economic reality" of the corporation's action was that shares were transferred to Clayton that he did not previously own. Cf. Rathborne, 683 F.2d at 920
15
See Pin v. Texaco, Inc., 793 F.2d 1448, 1452 (5th Cir.1986); Decker v. Massey-Ferguson, Ltd., 681 F.2d 111, 114 (2d Cir.1982). Rule 9(b) reads:
In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other conditions of mind of a person may be averred generally.
Fed.R.Civ.P. 9(b).
16
See Woodward v. Metro Bank of Dallas, 522 F.2d 84, 94-95 (5th Cir.1975); Decker, 681 F.2d at 119; Halberstam v. Welch, 705 F.2d 472, 477 (D.C.Cir.1983); Walck v. American Stock Exchange, Inc., 687 F.2d 778, 791 (3d Cir.1982)
17
See 18 U.S.C. Sec. 1961(5) (stating that " 'pattern of racketeering activity' requires at least two acts of racketeering activity"); Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S. Ct. 3275, 3285, 87 L. Ed. 2d 346 (1985)
18
As an alternative argument, Ayres contends that dismissal should be affirmed because the predicate acts alleged do not constitute a "pattern of racketeering activity." It is true that the acts underlying this RICO claim, like those alleged in Montesano v. Seafirst Commercial Corp., 818 F.2d 423 (5th Cir.1987), were part of a "scheme to achieve a single discrete objective," i.e., to gain control of Smith Protective Services. Despite substantial authority to the contrary, however, a panel of this Circuit has held that two predicate acts are a pattern despite the absence of continuity or evidence that the wrongs were other than discrete episodic occurrences. See R.A.G.S. Couture, Inc. v. Hyatt, 774 F.2d 1350 (5th Cir.1985). As we noted in Montesano, we are bound by R.A.G.S. pending reconsideration of the issue en banc or by the Supreme Court. See Montesano, 818 F.2d at 426; Crocker v. FDIC, 826 F.2d 347, 348 n. 2 (5th Cir.1987)
19
A Rule 10b-5 violation can constitute a predicate act under RICO. See 18 U.S.C. Sec. 1961(1) ("racketeering activity" includes "fraud in the sale of securities")
20
18 U.S.C. Sec. 1343 (emphasis added). Although Andrew also contends that the defendants have violated the federal mail-fraud statute, 18 U.S.C. Sec. 1341, he does not dispute the district court's conclusion that because the Wren letter was delivered to Ayres on the same day Ayres dictated it, it never was placed in the United States mail. Despite Andrew's assertion, the fact that the Wren letter included the notation, "cc: Mr. Ira Tobolowsky," does not make it any more likely that the letter was ever mailed
21
See Utz v. Correa, 631 F. Supp. 592, 595-96 (S.D.N.Y.1986) (telephone calls made within one city cannot constitute predicate acts of wire-fraud in RICO complaint); Harris Trust & Savings Bank v. Ellis, 609 F. Supp. 1118, 1122 (N.D.Ill.1985) (same)
22
See United States v. Gordon, 780 F.2d 1165, 1171 (5th Cir.1986) (holding that indictment sufficiently alleged wire-fraud based on telephone conversation between Mississippi and Texas); United States v. Cowart, 595 F.2d 1023, 1031 n. 10 (5th Cir.1979) (noting that interstate communication element of wire-fraud offense was established by telephone call from Florida to Georgia); United States v. Bradford, 571 F.2d 1351, 1353 (5th Cir.1978) (affirming wire-fraud convictions premised on telephone calls from Tennessee to Georgia and Tennessee to Kentucky); cf. United States v. Jackson, 451 F.2d 281, 284 (5th Cir.1971) (upholding conviction based on interstate call even though defendant argued that the fraudulent objective could have been achieved through intrastate telephone call)
23
See Union Planters Nat'l Leasing, Inc. v. Woods, 687 F.2d 117, 121 (5th Cir.1982)
24
Id | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1554864/ | 36 So.3d 704 (2010)
AMERICAN CAPITAL ASSURANCE CORP., Appellant/Cross-Appellee,
v.
COURTNEY MEADOWS APARTMENT, L.L.P., a Florida Corporation, Appellee/Cross-Appellant.
No. 1D09-2940.
District Court of Appeal of Florida, First District.
April 7, 2010.
Rehearing Denied June 2, 2010.
Guy E. Burnette, Jr. and A. Dean Johnson of Guy E. Burnette, Jr., P.A., Tallahassee, for Appellant/Cross-Appellee.
Diane H. Tutt, of Diane H. Tutt, P.A.; P. Campbell Ford of Ford, Miller & Wainer, P.A., Jacksonville Beach, for Appellee/Cross-Appellant.
ROBERTS, J.
In this interlocutory appeal, the appellant, American Capital Assurance Corporation (the insurer), and the appellee, Courtney Meadows Apartment, L.L.P. (the insured), both challenge the trial court's non-final order denying in part and granting in part the insurer's motion to compel appraisal. The insurer raises two issues on appeal, only one of which merits discussion. Specifically, the insurer argues the trial court erred in denying a portion of its motion to compel appraisal because its demand was untimely. The insured argues on cross-appeal that the trial court erred in granting appraisal of *705 four items that had not been adjusted. We agree with both parties and reverse and remand.
The dispute underlying this appeal began when the insurer issued a policy of insurance to the insured covering the Courtney Meadows apartment complex (the complex). The policy contained the following provisions relevant to this appeal. Regarding appraisal, section E.2. of the policy provided, in part:
If we and you disagree on the value of the property or the amount of loss, either may make written demand for an appraisal of the loss.
Regarding loss payment, section E.4. of the policy provided:
a. In the event of loss or damage covered by this Coverage Form, at our option, we will either:
(1) Pay the value of lost or damaged property;
(2) Pay the cost of repairing or replacing the lost or damaged property. . . [;]
(3) Take all or any part of the property at an agreed or appraised value; or
(4) Repair, rebuild or replace the property with other property of like kind and quality . . . [.]
* * *
c. We will give notice of our intentions within 30 days after we receive the sworn proof of loss.
* * *
g. We will pay for covered loss or damage within 30 days after we receive the sworn proof of loss, if you have complied with all of the terms of this Coverage Part and:
(1) We have reached agreement with you on the amount of loss; or
(2) An appraisal award has been made.
On June 1, 2008, a microburst hail storm caused damage to the complex, after which the insured filed a claim. In July 2008, the parties met to discuss the extent of damage to the complex. The insurer believed a majority of the complex's damaged roofs could be repaired, but the insured believed the same needed replacing. On October 3, 2008, the insurer sent the insured a final estimate, which indicated that only the office roof needed to be replaced and that the remaining roofs in the complex could be repaired. The final estimate also included other items of loss and estimated the total amount of damage at $168,285.98. On October 22, 2008, the insurer tendered a check to the insured for said amount and asked the insured to file a sworn proof of loss. The accompanying correspondence also stated that if the parties were unable to resolve the dispute the insurer may wish to proceed with appraisal.
In a November 11, 2008, correspondence from its attorney, the insured completely rejected the insurer's check as a gross under-evaluation of the claim and refused to provide the sworn proof of loss. The insured noted it was in agreement with the portion of the final estimate regarding the following items of loss: heat, vent, and air conditioning; window reglazing; and painting the gazebo. The insured also informed the insurer of additional items of loss that were not included in the final estimate, specifically: the trash compactor area, interior building work, the garage fascia, and pillar damage.[1]
In a November 18, 2008, letter to the insured, the insurer demanded appraisal. On December 23, 2008, the insured filed a complaint, which was subsequently amended, *706 seeking declaratory relief and alleging numerous breaches of contract. The insurer in turn moved to dismiss and/or abate the action and to compel appraisal, arguing that it had properly invoked the appraisal process under the terms of the policy.
A hearing was held on the insurer's motion. The insured argued that the insurer's pre-suit and post-suit conduct demonstrated a waiver of the appraisal clause of the policy and that, under the terms of the policy, the insurer's invocation of appraisal was untimely. The trial court agreed that the appraisal demand was untimely, finding that, when an insurer admits liability and coverage for loss, formal proof of loss is waived and the time in which the insurer is required to demand appraisal under the terms of the policy begins to run from its admittance of liability and coverage. The trial court cited Bear v. New Jersey Insurance Co., 138 Fla. 298, 189 So. 252 (1939); American Bankers Insurance Co. of Florida v. Terry, 277 So.2d 563 (Fla. 3d DCA 1973); Cincinnati Insurance Co. v. Palmer, 297 So.2d 96 (Fla. 4th DCA 1974); and Llerena v. Lumbermens Mutual Casualty Co., 379 So.2d 166 (Fla. 3d DCA 1980), to support its ruling. The trial court found that, by sending the final estimate and subsequently tendering the $168,285.98 check, the insurer admitted liability and thus waived its right to sworn proof of loss on October 3, 2008. The trial court further found sections E.4.a.(3) and E.4.c. of the policy required the insurer to notify the insured of its intention to seek appraisal within 30 days after this date, such that the insurer's November 18, 2008, demand for appraisal was untimely. Accordingly, the trial court denied the motion to compel appraisal of the items included the final estimate, but granted the motion to compel appraisal of the additional items of loss in the insured's November 11, 2008, correspondence (the trash compactor area, the garage fascia, pillar damage, and interior apartment damage).
The underlying insurance policy does not set forth a time limit for demanding appraisal. The policy's appraisal language is optional in that either party "may" demand appraisal and makes no mention of a time limit in which to do so. The portion of the policy that mandates a 30-day time limit for the insurer to provide its "notice of intentions" refers to the manner in which the claim will be evaluated. In other words, within 30 days of receiving the sworn proof of loss, the insurer will either: (1) pay the value of lost or damaged property; (2) pay the cost of repairing or replacing the lost or damaged property; (3) take all or any part of the property at an agreed or appraised value; or (4) repair, rebuild, or replace the property with other property of like kind and quality. There is no indication that this provision extends to the time in which the insurer must demand appraisal.
The trial court's reliance on the aforementioned cases to support its position is equally misplaced. In the cited cases, the policies either mandated appraisal or mandated a specific time in which to seek appraisal. For example, the policy language in Bear, stated:
In the event of disagreement as to the amount of loss the same shall, as above provided, be ascertained by competent and disinterested appraisers . . . the loss shall not become payable until 60 days after the notice, ascertainment, estimate and satisfactory proof of loss herein required to have been received by this company, including an award by appraisers when appraisal has been required.
(Emphasis added.) Bear, 189 So. at 253. The Bear court specifically found that the insurer had 60 days from the waiver of *707 proof of loss to demand appraisal. Id. at 299, 189 So. 252. In Terry, the policy language is not quoted, but the court referred to a 60-day time limit in which to demand arbitration. Terry, 277 So.2d at 564. Likewise, in Llerena, the policy provided that either the insurer or the insured may demand an appraisal within 60 days following the filing of proof of loss. Llerena, 379 So.2d at 167. The court went on to find the demand for appraisal was untimely as it was outside the 60-day time limit. Id. at 167-68. The court stated:
The law is well established that when an insurer admits liability in an unagreed amount, formal proof of loss is thereby waived and the time in which the insurer is required to demand appraisal under the terms of the subject policy begins to run from the time the insurer admits liability.
(Emphasis added.) Id. at 167.
The instant case is distinguishable because there is no language in the policy that requires appraisal to be invoked, if at all, within any set time from receiving or waiving the sworn proof of loss. Thus, under the terms of the instant policy, the insurer's demand for appraisal was not untimely. Furthermore, the insurer has not waived its right to appraisal as it has not acted inconsistently with that right from the time of demand. See Gonzalez v. State Farm Fire & Cas. Co., 805 So.2d 814, 817 (Fla. 3d DCA 2000).
Accordingly, because the insurance contract provided for appraisal, the insurer's demand for such was not untimely, and the insurer did not waive its right to appraisal, the trial court erred in partially denying the motion to compel appraisal. See Preferred Mut. Ins. Co. v. Martinez, 643 So.2d 1101, 1102 (Fla. 3d DCA 1994); Fla. Ins. Guar. Ass'n, Inc. v. Castilla, 18 So.3d 703, 705 (Fla. 4th DCA 2009). Furthermore, granting appraisal of the items of loss in the insured's cross-appeal was premature as those items had yet to be adjusted. Without adjustment, it is impossible to know whether the parties disputed the amount of loss to warrant appraisal. See United States Fidelity & Guar. Co. v. Romay, 744 So.2d 467, 469-70 (Fla. 3d DCA 1999).
REVERSED and REMANDED to the trial court to compel appraisal of the items of loss in the insurer's motion that are appropriately in dispute.
WOLF and VAN NORTWICK, JJ., concur.
NOTES
[1] These items of loss are the subject of the insured's cross-appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2453390/ | 355 F.Supp.2d 870 (2005)
UNITED STATES OF AMERICA, Plaintiff,
v.
JaJuan LEWIS and Theotrice Chambers, Defendants.
No. 04-80359.
United States District Court, E.D. Michigan, Southern Division.
February 3, 2005.
*871 Janice V. Terbush, U.S. Attorney's Office (Detroit) Detroit, MI, for Plaintiff.
Andrew N. Wise, S. Allen Early, III Federal Defender, Federal Defender Office (Detroit), Detroit, MI, for Defendants.
MEMORANDUM AND ORDER GRANTING DEFENDANTS' MOTIONS TO SUPPRESS
COHN, District Judge.
I. Introduction
This is a criminal case. Defendants Ja-Juan Lewis (Lewis) and Theotrice Chambers (Chambers) are charged in the First Superseding Indictment with five (5) counts of various drug offenses. Now before the Court are motions to suppress the statements each defendant gave to Drug Enforcement Administration (DEA) Task Force officers on June 5, 2003 following their arrests at the DEA office in Detroit on the grounds each was not advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). For the reasons that follow, the motions are GRANTED.
II. Background
The arrests occurred during the execution of a search warrant. In the course of the execution, the task force agents, Raymond Faes, a City of River Rouge police officer; Dean Smith, a City of Detroit police officer; and Michael Johns, a DEA agent; found drugs and drug paraphernalia. The defendants were taken to DEA headquarters in Detroit where each was separately questioned. The three officers were present at the interview of Lewis; Johns was not present at the interview of Chambers.
An evidentiary hearing was held on the motions on December 3, 2004. The three officers and the defendants testified at the hearing.
The officers' testimony was to the effect that at the beginning of the interviews the defendant was advised of his Miranda rights by the reading of DEA Form 71, Miranda Advisement.[1] The defendant acknowledged *872 the fact that he understood his rights and the defendant declined to sign the form. The officers also testified that each of the defendants voluntarily "gave the information reflected in the Form 6 described below." No officer signed DEA Form 71, although the form has two (2) lines for the signature of witnesses. No officer took notes of the interviews. The only record of the interviews was a DEA Form 6 Report of Investigation prepared by Faes on June 6, 2003, and signed by him on August 29, 2003. The form briefly summarizes the statements of each defendant.[2]
III. Discussion
A. A Note About Recorded Interrogations
While video equipment and audio cassette equipment was available at the DEA headquarters, as a matter of policy interviews such as those which occurred on June 5, 2003 are not recorded. The Assistant United States Attorney prosecuting the case has advised the Court:
DEA policy does not prohibit the recording of statements. Rather, the policy requires the recording of statements if the agents request that the interview be recorded and the defendant consents to the video or audio recording. While the recording of interviews would certainly make for less litigation over suppression issues, the government continues to believe that case law does not require suppression simply because the agents chose not to record the interview.
The notion of recording interrogations is not new, nor is it uncommon. Indeed, less than a decade after Miranda the American Law Institute proposed recording of interrogations as a way to eliminate disputes over statements made during interrogations. American Law Inst., A Model Code of Pre-Arraignment Procedure § 130.4(3) (1975). A 1993 report from the United States Department of Justice found that as of 1990, nearly one-sixth of all police and sheriffs' departments in the country videotaped at least some interrogations or confessions. William A. Geller, Videotaping Interrogations and Confessions, Nat'l Inst, of Justice, U.S. Dep't of Justice, Research in Brief (Mar.1993).
Two statesAlaska and Minnesotarequire recorded interrogations. See Stephan v. State, 711 P.2d 1156 (Alaska 1985); State v. Scales, 518 N.W.2d 587 (Minn. 1994). See also Mallott v. State, 608 P.2d 737, 743 n. 5 (Alaska 1980). The District of Columbia, Illinois, Maine, and Texas have, by legislation, imposed a recording requirement for certain types of cases and interrogations. See D.C.Code Ann. § 5-133.20; 725 Ill. Comp. Stat. Ann. 5/103-2.1; Me.Rev.Stat. Ann. tit. 25, § 2803-B(1)(J); Tex.Crim. P.Code Ann. § 38.22(3)(a). A recent article in the Drake Law Review discusses other jurisdictions that are considering implementing a recording requirement and suggests that "recording interrogations may soon become the rule, rather than the exception." Steven A. Drizin & Marissa J. Reich, Heeding the Lessons of History: The Need for Mandatory Recording of Police Interrogations to Accurately Assess the Reliability and Voluntariness of Confessions, 52 DRAKE L.REV. 619, 639-45 (2004).[3] Additionally, the American Bar Association unanimously accepted *873 a resolution in early 2004 that urges law enforcement agencies across the country to videotape interrogations. Id. at 640.[4] On a global scale, Great Britain, Canada, and Australia all require either audio or video recordings of interrogations. Daniel Donovan & John Rhodes, Comes a Time: The Case for Recording Interrogations, 61 MONT. L.REV. 223, 231 (2000). If law enforcement officers in Australia fail to comply with the requirement, the jury will receive an instruction suggesting any police testimony about a confession may be unreliable. Id.
Affording the Court the benefit of watching or listening to a videotaped or audiotaped statement is invaluable; indeed, a tape-recorded interrogation allows the Court to more accurately assess whether a statement was given knowingly, voluntarily, and intelligently. One legal commentator has noted that "some of the most detailed assessments of voluntariness have come in cases of recorded interrogations, which permit judges to parse implicit promises and threats made to obtain an admission." Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 Nw. U.L.REV. 387, 487 (1996). "Taping is thus the only means of eliminating `swearing contests' about what went on in the interrogation room." Id.
B. Analysis
Each defendant testified that he was not read his Miranda rights. Particularly, Chambers has a severe stuttering problem and could barely articulate his answers to questions. No mention of this difficulty was mentioned in any officers' testimony or on DEA Form 6. Each defendant is not a stranger to the criminal justice system. On a prior occasion, Lewis, following his arrest, was interviewed and he signed a Miranda rights form.
The government has the burden of proof as to the waiver by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). This means the government must establish that it was more likely than not that a defendant was read his Miranda rights and acknowledged that he had a right to remain silent.
Given the totality of the circumstances of the interviews, it cannot be said that the government has carried its burden:
the three officers are experienced in matters of arrest, interrogation and the obligation to advise a defendant of his Miranda rights;
no officers signed the Miranda advisement form to memorialize the fact that he was a witness to the advice of lights;
no officer took notes of an interview to memorialize a defendant's statement;
the interviews were not memorialized by video or audio recording, notwithstanding that equipment to do so was available, and notwithstanding the fact that one of the officers had previously been involved in a interview situation where the failure to record was criticized, see United States v. Thornton, 177 F.Supp.2d 625, 628 (E.D.Mich. 2001);
*874 only a summary of what was said in an interview and the officers' memory of what was said is available to establish the fact that Miranda advice was given a defendant; and
each defendant denies that his Miranda rights were given him.
Miranda rights are substantive. A bright-line rule requires that they be given to a defendant. "When police ask questions of a suspect in custody without administering the required warnings, Miranda dictates that the answers received be presumed compelled and that they be excluded from evidence at trial in the [government's] case in chief." Oregon v. Elstad, 470 U.S. 298, 317, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). Establishing that they were given to a defendant in the circumstances reflected in the record is simply too slender for a finding that it was more likely than not that they were in fact given.
SO ORDERED.
*875
*876
*877
NOTES
[1] A copy of DEA Form 71 is attached to this Order as Exhibit A.
[2] A copy of DEA Form 6 is attached as Exhibit B.
[3] The article notes that the Massachusetts Supreme Court, the New Jersey Supreme Court, and the Wisconsin Supreme Court recently decided to examine the issue of recording interrogations. Id. at 641. The article also discusses how a series of newspaper articles in the Washington Post, he Miami Herald, and the San Antonio Express-News exposing problems of false confessions prompted police departments in Prince George's County, Maryland; Broward County, Florida; Fort Lauderdale, Florida; Miami, Florida; and San Antonio, Texas to institute policies requiring recorded interrogations.
[4] The resolution provides, in pertinent part:
[T]he American Bar Association urges legislatures and/or courts to enact laws or rules of procedure requiring videotaping of the entirety of custodial interrogations of crime suspects at police precincts, courthouses, detention centers, or other places where suspects are held for questioning, or, where videotaping is impractical, to require the audiotaping of such custodial interrogations, and to provide appropriate remedies for non-compliance.
See Am. B. Ass'n, N.Y. County Lawyers' Ass'n, Criminal Justice Section, Report to the House of Delegates (Feb.2004), available at http:// www. abanet.org/leadership/2004/recommendations/Sa.pdf. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3053955/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE: JAMES H. GALLAHER, Jr.,
JAMES H. GALLAHER, Jr.,
Petitioner, No. 07-74593
v.
UNITED STATES DISTRICT D.C. No.
CR-05-00224-RHW
COURT FOR THE DISTRICT OF OPINION
WASHINGTON,
Respondent,
UNITED STATES OF AMERICA,
Real Party in Interest.
Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, District Judge, Presiding
Argued and Submitted
June 2, 2008—Seattle, Washington
Filed November 13, 2008
Before: M. Margaret McKeown and Consuelo M. Callahan,
Circuit Judges, and Otis D. Wright,* District Judge.**
Opinion by Judge McKeown
*The Honorable Otis D. Wright, United States District Court for the
Central District of California, sitting by designation.
**This case was argued before Judges Ferguson, Callahan, and Wright.
Following Judge Ferguson’s death, Judge McKeown was substituted for
Judge Ferguson.
15367
15370 IN RE: GALLAHER
COUNSEL
Stephen R. Hormel (argued), Federal Defenders of Eastern
Washington and Idaho, Spokane, Washington, for the peti-
tioner.
Joseph H. Harrington (argued), Assistant United States Attor-
ney; James A. McDevitt, United States Attorney, Spokane,
Washington, for the real party in interest.
OPINION
McKEOWN, Circuit Judge:
In the classic words of the Rolling Stones, “You can’t
always get what you want.” The Rolling Stones, You Can’t
Always Get What You Want, on Let It Bleed (Decca Records
IN RE: GALLAHER 15371
1969). A defendant who chooses to take a conditional plea
cannot always assume the court will grant its consent. And, a
district court that wants to review a defendant’s Presentence
Report (PSR) cannot do so until the defendant has granted his
consent or entered a plea. Consequently, we are forced to dis-
appoint both the district court and the petitioner in this appeal.
Because the district court exercised its discretion to deny its
consent to Gallaher’s conditional plea, the petition for a writ
of mandamus must be denied. However, because the district
court erred by prematurely reviewing Gallaher’s PSR, we
remand for further proceedings, and reassign this case to a
new judge to consider de novo whether to accept Gallaher’s
conditional plea.
I. BACKGROUND
After James H. Gallaher, Jr. was charged with first degree
murder, he entered into a conditional plea agreement. Under
the agreement, he pleaded guilty to involuntary manslaughter,
but reserved the right to appeal the district court’s earlier
denial of his motion to dismiss the indictment.1 The agree-
ment also stipulated that Gallaher could withdraw his guilty
plea if his appeal was successful.2
At the change of plea hearing, the district court expressed
reservations about certain terms in the plea agreement.3 The
1
Gallaher’s motion to dismiss alleged that the indictment violated the
applicable statute of limitations. The district court denied the motion, con-
cluding that first degree murder is not subject to a statute of limitations.
We rejected Gallaher’s petition for a writ of mandamus on that issue. Gal-
laher v. U.S. Dist. Court, No. 06-73909 (9th Cir. Dec. 6, 2006), cert.
denied, 127 S. Ct. 1869 (2007).
2
Gallaher also agreed to waive any ex post facto or statute of limitations
claims related to his involuntary manslaughter plea and to accept a sen-
tence in accordance with the then-current statutory penalties — four to six
years — as opposed to the three-year maximum penalty in effect on the
date he committed the offense.
3
Specifically, the district court questioned the propriety of (1) accepting
a plea to a lesser included offense without first securing a new indictment;
15372 IN RE: GALLAHER
court then reviewed the agreement with Gallaher and engaged
in a plea colloquy consistent with the requirements of Rule
11(b) of the Federal Rules of Criminal Procedure. The district
court found that Gallaher’s plea was knowing, voluntary,
intelligent, and supported by a sufficient factual basis. The
judge then stated that he would “conditionally approve” the
plea, but that he wanted “to review the pre-sentence report
and then accept it or not.” The following exchange occurred:
Court: What I’m going to do is — this plea binds
me. I’m going to — I want to review the pre-
sentence report before I’m sure that I want to accept
this plea. So I’m going to conditionally approve it.
And when I get the pre-sentence report, if there’s a
problem, then I’ll notify the parties; and then we can
come back here. Do you understand that?
Defense Counsel: Your Honor, are you condition-
ally accepting the plea agreement or the plea?
There’s two — there’s two layers there, so I’m con-
fused.
Court: Do I have to accept the plea agreement?
What’s that mean? I’ve never accepted a plea —
Defense Counsel: You can defer the acceptance of
the plea agreement until the time of sentencing. The
acceptance of the plea, I’m not sure. There’s two
steps in a —
Court: What I’m saying is that I can come out and
say I’m not going to accept this plea, and you’d be
(2) accepting a plea to involuntary manslaughter which, because of its five
year statute of limitations, could not have been lawfully charged; and (3)
accepting a sentence that allowed the district court to depart from the stat-
utory maximum that existed at the time of the offense.
IN RE: GALLAHER 15373
back to what he’s charged with. I think that’s that
[sic] I’m not accepting — I’m conditionally accept-
ing the plea, waiting to see the pre-sentence report.
Does that make sense?
Defense Counsel: I think so.
Court: Well, I’m not expecting you to like it. But,
I mean, do you understand what I’m saying?
Defense Counsel: I understand what you’re —
you’re —
Court: What I’m trying to say is that I — most of
the time, I accept the plea or don’t accept it; or I
accept it conditioned upon getting the pre-sentence
report. What I want to do is I want to review the pre-
sentence report and then accept it or not.
The district court scheduled sentencing and ordered the
Probation Office to prepare a PSR. The court filed an “Order
Accepting Guilty Plea,” which stated that the plea was “con-
ditionally accepted.” The minutes of the change of plea hear-
ing also noted that the district court “[c]onditionally
accept[ed] plea but will not accept plea until the presentence
report is reviewed.”
At the sentencing hearing, the district judge noted that the
“plea is conditional and requires the court’s consent.” The dis-
trict judge then announced that he was “not accepting the con-
ditional plea” and was setting the case for trial:
[I]f the plea was unconditional, I would have no
choice. I would have to accept it. But I’m not accept-
ing the conditional plea. . . . I’m not ruling on the
plea agreement. I’m basing it on the conditional plea.
I’ve got a first-degree murder charge that alleges
facts that are far different than is ultimately required
15374 IN RE: GALLAHER
for me to consider under the conditional plea, and so
I’m not going to accept that. We’ll have to set this
back down for trial. And if you have some other dis-
position in the meantime, you can let me know.
Gallaher filed this petition for a writ of mandamus seeking
an order directing the district court to accept his guilty plea,
and the reassignment of his case to a new judge. Although we
review the district court decision for clear error, see In re
Morris, 363 F.3d 891, 891 (9th Cir. 2004) (per curiam), we
consider de novo whether the elements of the mandamus test
are satisfied. Johnson v. Reilly, 349 F.3d 1149, 1154 (9th Cir.
2003).
II. ANALYSIS
A. JUDICIAL DISCRETION TO WITHHOLD CONSENT
A conditional guilty plea differs in important respects from
an unconditional guilty plea. An unconditional plea may be
deemed accepted once the court has conducted a Rule 11 col-
loquy and found that the defendant’s plea satisfies the require-
ments of Rule 11(b). In re Vasquez-Ramirez, 443 F.3d 692,
696 (9th Cir. 2006) (“[T]he act of ‘accepting’ a tendered
guilty plea is non-discretionary once the Rule 11(b) require-
ments are met.”).
[1] By contrast, a conditional plea is contingent on the
defendant securing the consent of both the government and
the court. Fed. R. Crim. P. 11(a)(2) (“With the consent of the
court and the government, a defendant may enter a condi-
tional plea of guilty . . . .”). The language of Rule 11(a)(2) is
entirely permissive and “create[s] no enforceable ‘right’ to
enter a conditional plea.” United States v. Fisher, 772 F.2d
371, 374 (7th Cir. 1985).4
4
Gallaher advances a plausible argument based on the Advisory Com-
mittee Notes to Rule 11(a)(2). The Advisory Committee Notes suggest
IN RE: GALLAHER 15375
[2] The other circuits that have examined the text of Rule
11(a)(2) have concluded that Rule 11(a)(2) does not place any
per se restrictions on how a court may exercise its discretion.
United States v. Bundy, 392 F.3d 641, 647 (4th Cir. 2004)
(stating that a district judge is free to withhold consent from
a conditional plea “for any reason or no reason at all”); United
States v. Bell, 966 F.2d 914, 916 (5th Cir. 1992) (concluding
that the court is “free to reject a conditional plea for any rea-
son or no reason at all”); United States v. Davis, 900 F.2d
1524, 1527 (10th Cir. 1990) (stating that a district court “has
absolute discretion with regard to accepting or rejecting the
conditional plea” and “can refuse to accept a conditional plea
for any reason or for no reason”); Fisher, 772 F.2d at 374
(concluding that the government was free to refuse its consent
“for any reason or for no reason at all”). We decline Gal-
laher’s invitation to step off the path followed by our sister
circuits. Under Rule 11(a)(2), the district court’s discretion to
reject the conditional plea was not limited in the ways Gal-
laher suggests.
B. ACCEPTANCE OF A CONDITIONAL GUILTY PLEA
[3] Having determined that the district court had discretion
to withhold its consent to the conditional guilty plea, we next
consider whether the district court did in fact withhold its con-
sent. At the initial change of plea hearing, the district court
“conditionally approve[d]” the plea, explaining that it “wan-
t[ed] to review the presentence report and then accept it or
not.” Both the change of plea order and the minutes stated that
the plea was “conditionally accepted.” The district court later
emphasized that this conditional acceptance was not an
that the consent requirement helps ensure that the issue the defendant
wishes to reserve for appeal is dispositive and sufficiently developed to
allow for an appellate court’s review. However, nothing in the rule itself
or our case law dictates that this is the singular basis on which a court may
refuse its consent.
15376 IN RE: GALLAHER
expression of consent and explicitly refused to consent to the
conditional plea.5
[4] We do not express an opinion on whether, under differ-
ent circumstances, a court’s consent to a conditional plea may
be inferred from its actions alone. Here, the district court’s
explicit and repeated rejection of the plea precludes such an
inference. Because the district court exercised its discretion to
reject the plea, the petition for writ of mandamus is denied.
C. RULE 32
[5] Though we deny the petition for mandamus, our review
of the district court proceedings is not yet complete. We must
also decide whether the district court erred by reviewing the
PSR before rejecting Gallaher’s conditional plea. Under Fed-
eral Rule of Criminal Procedure 32(e)(1), “Unless the defen-
dant has consented in writing, the probation officer must not
submit a presentence report to the court or disclose its con-
tents to anyone until the defendant has pleaded guilty or nolo
contendere, or has been found guilty.” Fed. R. Crim. P.
32(e)(1) (emphasis added).6
The Supreme Court explained in Gregg v. United States
that Rule 32’s non-disclosure provision is “explicit” and that
5
The district court stated: “I expressed from the earliest time that I . . .
reserved the acceptance of the plea. I didn’t not accept it on [Rule 11(b)
grounds]; but I didn’t accept it because my consent’s required, and I
reserved that.” The district judge later reiterated that “when I was going
through the litany about whether I accepted the plea or not, I concluded
that I was not ready to consent to the plea; and so I didn’t.”
6
The district judge expressed concern that the court “is the least
informed about the factors that may be relevant to consent” and that “[t]o
deny the district court complete information would result in a less-
informed exercise of discretion.” Nonetheless, Rule 32 only prevents the
district court from reviewing a document which may contain prejudicial
information that “is irrelevant to the determination of guilt or innocence,
and is only relevant to sentencing.” Vasquez-Ramirez, 443 F.3d at 698.
IN RE: GALLAHER 15377
a court’s premature review of the PSR “constitutes error of
the clearest kind.” 394 U.S. 489, 491, 492 (1969). The Court
admonished that this rule “must not be taken lightly” because
PSRs contain “no formal limitations on their contents, and
they may rest on hearsay and contain information bearing no
relation whatever to the crime with which the defendant is
charged.” Id. at 492. Indeed, allowing “ex parte introduction
of this sort of material to the judge who will pronounce the
defendant’s guilt or innocence or who will preside over a jury
trial would seriously contravene the rule’s purpose of prevent-
ing possible prejudice from premature submission of the pre-
sentence report.” Id.; see also Vasquez-Ramirez, 443 F.3d at
698 (“The obvious reason for this rule is that the information
in a presentence report, such as criminal history and related
conduct, is irrelevant to the determination of guilt or inno-
cence, and is only relevant to sentencing.”).
[6] Because the district court did not consent to Gallaher’s
attempt to plead guilty, it follows that Gallaher had not
“pleaded guilty,” and thus the court’s review of the PSR was
premature and in error.7 As in Vasquez-Ramirez, “[t]he district
judge wants to have it both ways — he wants to have access
to information to which he is only entitled once the defendant
is guilty, and then use it retrospectively to decide whether to
accept the defendant’s guilty plea. This is not allowed under
the Rules.” 443 F.3d at 699.
[7] Both parties agree that if the review of the PSR was in
error, reassignment to a new judge is the appropriate remedy.
This reassignment is not a reflection on the district judge. We
7
In United States v. Cordova-Perez, we upheld a district court’s rejec-
tion of a guilty plea even though the district court had reviewed the defen-
dant’s PSR. 65 F.3d 1552, 1556 (9th Cir. 1995). However, the Supreme
Court overturned this holding in United States v. Hyde. 520 U.S. 670, 677
(1997). We decline to mine Cordova-Perez for any aspects that may
remain applicable post-Hyde and reiterate our conclusion that “Cordova-
Perez is no longer good law.” In re Ellis, 356 F.3d 1198, 1205 (9th Cir.
2004) (en banc).
15378 IN RE: GALLAHER
have explained that “[g]iven the preliminary nature of the plea
proceedings, the minimal potential for waste or duplication of
judicial resources is outweighed by the need to proceed in a
manner that preserves the appearance of justice.” Ellis, 356
F.3d at 1211. Accordingly, we remand this case for reassign-
ment to a new judge to consider whether to accept Gallaher’s
conditional plea.
Petition for a writ of mandamus is DENIED; REMANDED
for REASSIGNMENT to a new judge for further proceedings. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1298438/ | 658 N.W.2d 549 (2003)
Lance CLOUD, Respondent,
v.
LEECH LAKE HOUSING AUTHORITY, and Commerce & Industry with claims administered by AIG Claim Services, Inc., Relators, and
Minnesota Department of Labor and Industry/Vocational Rehabilitation Unit, and Institute for Low Back and Neck Care, Intervenors.
No. C6-03-37.
Supreme Court of Minnesota.
March 26, 2003.
Daniel E. Werthman, Brainerd, MN, for Respondent.
Nicole B. Surges, Erstad & Riemer, P.A., Minneapolis, MN, for Relators and Intervenors.
Considered and decided by the court en banc.
ORDER
Based upon all the files, records and proceedings herein,
IT IS HEREBY ORDERED that the decision of the Workers' Compensation Court of Appeals filed December 11, 2002, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01.
Employee is awarded $1,200 in attorney fees.
BY THE COURT:
Russell A. Anderson
Associate Justice | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2807963/ | Case: 14-14679 Date Filed: 06/12/2015 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14679
________________________
D.C. Docket No. 4:11-cv-01846-VEH
JOANNE PEARSON,
Plaintiff-Counter Defendant-Appellant,
versus
TRAVELERS HOME AND MARINE INSURANCE COMPANY,
Defendant-Counter Claimant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(June 12, 2015)
Before ED CARNES, Chief Judge, TJOFLAT and SENTELLE, * Circuit Judges.
PER CURIAM:
*
Honorable David Bryan Sentelle, United States Circuit Judge for the District of Columbia,
sitting by designation.
Case: 14-14679 Date Filed: 06/12/2015 Page: 2 of 3
Having studied the briefs and the pertinent parts of the record, and after
hearing oral argument, we conclude that the district court did not err in entering
summary judgment against the plaintiff in this case. See, e.g., Miller’s Ale House,
Inc. v. Boynton Carolina Ale House, LLC, 702 F.3d 1312, 1316 (11th Cir. 2012)
(“Where the record taken as a whole could not lead a rational trier of fact to find
for the non-moving party, there is no genuine issue for trial.”) (quotation marks
omitted); Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir. 2009) (“A
‘mere scintilla’ of evidence is insufficient; the non-moving party must produce
substantial evidence in order to defeat a motion for summary judgment.”); Galvez
v. Bruce, 552 F.3d 1238, 1240 n.1 (11th Cir. 2008) (“Under Federal Rule of Civil
Procedure 56, the court may disregard an offer of evidence that is too incredible to
be believed.”) (quotation marks omitted); see also Hickson Corp. v. N. Crossarm
Co., 357 F.3d 1256, 1260 (11th Cir. 2004) (“An issue of fact is ‘genuine’ if the
record taken as a whole could lead a rational trier of fact to find for the nonmoving
party.”). 1
1
The appellant contends that it was an abuse of discretion to deny her discovery motion on
attorney–client privilege grounds. The district court, however, based its discovery ruling on two
independent grounds. The other ground was the work product privilege, which appellant did not
challenge in her brief. She has, therefore, abandoned any contention that the district court
erroneously applied the work product privilege. Because she has “fail[ed] to challenge properly
on appeal one of the grounds on which the district court based its” discovery ruling, “it follows
that the [ruling] is due to be affirmed.” Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680
(11th Cir. 2014).
2
Case: 14-14679 Date Filed: 06/12/2015 Page: 3 of 3
AFFIRMED. 2
2
The appellee’s motion to strike certain portions of the appellant’s reply brief is DENIED.
3 | 01-03-2023 | 06-12-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2858003/ | IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-393-CR
NO. 3-91-394-CR
AND
NO. 3-91-395-CR
CATHIE ANN CASTILLEJA,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE COUNTY COURT AT LAW NO. 1 OF HAYS COUNTY,
NOS. 32,059, 32,124 & 32,252, HONORABLE HOWARD S. WARNER, II, JUDGE
PER CURIAM
These are appeals from three orders revoking probation. Appellant was placed on
probation in each cause following her convictions for theft by check. Tex. Penal Code Ann.
§§ 31.03, 31.06 (1989 & Supp. 1992). The punishment in each cause is incarceration for 120
days.
By her first point of error, appellant contends that the underlying judgments of
conviction are void. Specifically, appellant urges that the trial court did not have jurisdiction
because the informations were not filed. As evidence in support of this contention, appellant
points out that the informations do not bear the file stamp of the county clerk.
A charging instrument that fails to reflect on its face the time of presentment and
filing is not fundamentally defective. Rincon v. State, 615 S.W.2d 746 (Tex. Crim. App. 1981).
It is sufficient that the docket sheets in each cause reflect that complaints and informations were on file. Id. In addition, the informations in our numbers 3-91-393-CR and 3-91-394-CR recite
on their face that they were filed on a specified date. Point of error one is overruled.
In point of error three, appellant urges that the conditions of probation she was
found to have violated were so vague and indefinite as to be unenforceable. In point two,
appellant contends the trial court erred by overruling her motions to quash the State's motions to
revoke, citing the vagueness of the conditions of probation as the reason. Finally, in point four,
appellant contends the State failed to prove the alleged violations of the conditions of probation.
We will address these points of error as they apply to the eighteenth condition of probation in each
cause: "Life skills program."
In her brief, appellant asks of this condition, "Does that mean she is to read a book,
think about life, attend some course, pass a course, take a test or what?" Appellant concludes that
because this condition of probation does not expressly direct her to do anything, her probation
could not be revoked for failure to comply.
Bonnie Goodwin testified that she is regional coordinator for an organization "that
sponsors these Life Skills Programs in various places throughout the state. And they're primarily
for first-time offenders to teach them life skills that will hopefully help them not to become repeat
offenders." In early September 1991, appellant called Goodwin to enroll in the October class.
Appellant failed to attend the class and, according to Goodwin, never made arrangements to attend
another.
Appellant testified that she understood that she was required to attend the life skills
class. She stated that she did not attend because she could not afford the $60 fee. She admitted,
however, that she had been told that the fee could be waived. Asked why she never sought a
waiver of the fee, appellant replied, "I just never mentioned it."
To be enforceable, a condition of probation must inform the probationer with
sufficient certainty of what she is to do. Cardona v. State, 665 S.W.2d 492 (Tex. Crim. App.
1984); Harris v. State, 608 S.W.2d 229 (Tex. Crim. App. 1980); Rains v. State, 678 S.W.2d 308
(Tex. App. 1984, pet. ref'd). But these opinions make it clear that the courts look to the entire
record to determine if the probationer was given the requisite information. In these causes, the
evidence demonstrates that appellant knew she was obligated to attend a life skills class and that
she knew how to satisfy that obligation. By her own admission, appellant did not attend the class.
We conclude that the trial court did not abuse its discretion by revoking appellant's probation for
failing to attend the life skills program.
Points of error two, three, and four are overruled insofar as they pertain to the
eighteenth condition of probation. Because the revocation of probation may be sustained on this
ground alone, we do not address these points of error as they relate to the other challenged
conditions. Moore v. State, 605 S.W.2d 924 (Tex. Crim. App. 1980).
The orders revoking probation are affirmed.
[Before Chief Justice Carroll, Justices Aboussie and B. A. Smith]
Affirmed
Filed: February 19, 1992
[Do Not Publish] | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2858035/ | IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-535-CV
JIMMY R. WALKER,
APPELLANT
vs.
PATRICIA THIBEAU,
APPELLEE
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. 493,413, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING
PER CURIAM
Appellant Jimmy R. Walker seeks to appeal from an amended judgment and order
clarifying a divorce decree rendered by the district court of Travis County. Walker has filed a
motion by which he requests an extension of time to file the statement of facts; appellee Patricia
Thibeau has filed a response and a motion to dismiss. We will dismiss the appeal.
The district court of Travis County signed a judgment in the underlying cause on
August 8, 1991. Walker filed a timely motion for new trial on August 14, 1991. Tex. R. Civ.
P. Ann. 329b(a) (Supp. 1991). On September 9, 1991, the district court signed both an order
overruling the motion for new trial and an amended judgment. Walker filed his cost bond on
appeal on September 24, 1991. The transcript was filed in this Court on December 5, 1991; the
statement of facts was received on December 16, 1991.
Because the district court signed the amended judgment within the period of its
plenary power, the appellate timetable runs from September 9th. Tex. R. Civ. P. Ann. 329b(e),
(h) (Supp. 1991); Miller v. Hernandez, 708 S.W.2d 25, 26 (Tex. App. 1986, no writ). The
question presented here is whether the motion for new trial, filed on August 14, 1991, extends
the period for filing the record to one hundred twenty days after the amended judgment was
signed. See Tex. R. App. P. Ann. 54(a) (Pamph. 1991). If so, the transcript and statement of
facts were due to be filed in this Court no later than January 8, 1992.
We conclude that the motion for new trial did not extend the period within which
to file the record. Appellate courts have determined that a motion for new trial filed before
issuance of an amended judgment may be considered a premature motion and, therefore, extends
the appellate deadlines. Syn-Labs, Inc. v. Franz, 778 S.W.2d 202 (Tex. App. 1989, no writ);
Miller, 708 S.W.2d at 27; see Tex. R. Civ. P. Ann. 306c (Supp. 1991); Tex. R. App. P. Ann.
58 (Pamph. 1991). But see Kitchens v. Kitchens, 737 S.W.2d 101 (Tex. App. 1987, no writ).
The dispositive question is whether the motion for new trial was a live pleading at the time of
signing of the amended judgment. Syn-Labs, Inc., 778 S.W. 2d at 204; A.G. Solar & Co., Inc.
v. Nordyke, 744 S.W.2d 646 (Tex. App. 1988, no writ).
In the instant cause, the district court signed both the order overruling the motion
for new trial and the amended judgment on September 9, 1991. (1) Neither document refers to the
other. The only indications as to the order in which the district court acted are the docket sheet
entries and the order of the documents in the transcript. The docket sheet lists: (1) the order
overruling the motion for new trial; (2) the order fixing amount of supersedeas bond; and (3) the
amended judgment and order clarifying decree. The filing of the documents in the minutes of the
court and the transcript follows the listing on the docket sheet. From the above, we conclude that
the motion for new trial had been overruled and was not a live pleading at the time the district
court signed the amended judgment. Accordingly, Walker had until November 12, 1991, to file
the record on appeal and until November 27, 1991, to file a motion for extension of time to file
the record on appeal. Tex. R. App. P. Ann. 54(a), (c) (Pamph. 1991).
Because the transcript was received on December 5, 1991, and was untimely, this
Court was without jurisdiction to file it. Similarly, we have no jurisdiction to consider Walker's
untimely motion to file the statement of facts. Forest Lane Porsche-Audi Assoc. v. Defries, 730
S.W.2d 80, 82 (Tex. App. 1987, no writ); see B.D. Click v. Safari Drilling Co., 638 S.W.2d
860, 862 (Tex. 1982). We dismiss the motion for extension of time to file the statement of facts.
This Court may dismiss an appeal for failure to file the record within the designated
time. Rule 54(a). Because neither the transcript nor statement of facts was timely filed, we grant
Thibeau's motion to dismiss and dismiss the appeal.
[Before Chief Justice Carroll, Justices Aboussie and Kidd]
Appeal Dismissed on Appellee's Motion
Filed: January 29, 1992
[Do Not Publish]
1. On that day, the district court also signed an order fixing amount of supersedeas bond. This
order refers only to the judgment rendered on August 8, 1991. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3033344/ | Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
12-5-2008
Simon v. Wiessmann
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3880
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Simon v. Wiessmann" (2008). 2008 Decisions. Paper 156.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/156
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 07-3880
_____________
RICHARD D. SIMON, Individually and as Attorney-in-Fact
for Vera Pomerantz, and on behalf of all others similarly situated,
VERA POMERANTZ, Individually Through Her Attorney-in-Fact,
and on behalf of all others similarly situated
v.
ROBIN L. WEISSMANN, Treasurer of the Commonwealth of Pennsylvania
Richard D. Simon, Vera Pomerantz, and *Ronald J. Smolow,
Appellants
*(Pursuant to Rule 12(a), F.R.A.P.)
Submitted Under Third Circuit L.A.R. 34.1(a)
October 28, 2008
Before: McKEE, NYGAARD, and MICHEL,* Circuit Judges
ORDER AMENDING OPINION
At the direction of the Court, the Clerk is directed to file an amended Opinion.
/s/ Marcia M. Waldron
Clerk
Dated: December 5, 2008
*
The Honorable Paul R. Michel, Chief Judge of the United States Court of Appeals
for the Federal Circuit, sitting by designation. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/868042/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4888
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BRIAN MCNAIR,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:11-cr-02342-RBH-1)
Submitted: May 13, 2013 Decided: May 16, 2013
Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
John M. Ervin, III, LAW OFFICES OF JOHN M. ERVIN, III,
Darlington, South Carolina, for Appellant. Alfred William Walker
Bethea, Jr., Assistant United States Attorney, Florence, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian McNair pled guilty, pursuant to a written plea
agreement, to one count of possession with intent to distribute
cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C)
(2006). On appeal, counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal but questioning whether the
district court complied with Fed. R. Crim. P. 11 at McNair’s
change of plea hearing and whether his sentence is reasonable.
McNair filed a pro se supplemental brief arguing that the Double
Jeopardy Clause of the Fifth Amendment bars his federal
prosecution. Finding no error, we dismiss in part and affirm in
part.
Prior to accepting a guilty plea, a trial court,
through colloquy with the defendant, must inform the defendant
of, and determine that the defendant understands, the nature of
the charge to which the plea is offered, any mandatory minimum
penalty, the maximum possible penalty he faces, and the various
rights he is relinquishing by pleading guilty. Fed. R. Crim. P.
11(b)(1). The district court also must ensure that the
defendant’s plea was voluntary, was supported by a sufficient
factual basis, and did not result from force or threats. Fed.
R. Crim. P. 11(b)(2), (3). Upon review of the record, we
2
conclude that the district court complied with Rule 11’s
requirements.
McNair contends that his federal prosecution is
unlawful because he had served a state sentence for the same
conduct. The Double Jeopardy Clause of the Fifth Amendment
protects a defendant against “the imposition of cumulative
punishments for the same offense in a single criminal trial” and
“being subjected to successive prosecutions for the same
offense.” United States v. Goodine, 400 F.3d 202, 206 (4th Cir.
2005) (internal quotation marks and emphasis omitted). However,
the dual or separate sovereigns doctrine permits a federal
prosecution after a state prosecution for the same offense.
Heath v. Alabama, 474 U.S. 82, 89 (1985); see also United States
v. Christmas, 222 F.3d 141, 145 (4th Cir. 2000) (citing Abbate
v. United States, 359 U.S. 187 (1959)). We conclude that
McNair’s case is firmly within the dual sovereign exception.
Thus, we affirm McNair’s conviction.
Turning to McNair’s sentence, we note that McNair and
the Government stipulated to a sentence as provided by Fed. R.
Crim. P. 11(c)(1)(C). Pursuant to 18 U.S.C. § 3742(a), (c)
(2006), “[w]here a defendant agrees to and receives a specific
sentence, he may appeal the sentence only if it was (1) imposed
in violation of the law, (2) imposed as a result of an incorrect
application of the Guidelines, or (3) is greater than the
3
sentence set forth in the plea agreement.” United States v.
Calderon, 428 F.3d 928, 932 (10th Cir. 2005). “Otherwise, the
Court lacks jurisdiction over the appeal.” Id. Here, the
district court imposed the specific sentence to which McNair
agreed, and the sentence did not exceed the statutory maximum.
Moreover, it could not have been imposed as a result of an
incorrect application of the Guidelines because it was based on
the parties’ Rule 11(c)(1)(C) agreement and not on the district
court’s calculation of the Guidelines. See United States v.
Brown, 653 F.3d 337, 339-40 (4th Cir. 2011); United States v.
Cieslowski, 410 F.3d 353, 364 (7th Cir. 2005). We therefore
dismiss McNair’s appeal to the extent that he challenges the
stipulated sentence.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm McNair’s conviction, and dismiss McNair’s
appeal to the extent he challenges his sentence. This court
requires that counsel inform McNair, in writing, of the right to
petition the Supreme Court of the United States for further
review. If McNair requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on McNair.
4
Accordingly, we dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this court and argument will not aid the
decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
5 | 01-03-2023 | 05-16-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1554608/ | 36 So.3d 681 (2010)
SEGRETO
v.
FLORIDA UNEMPLOYMENT APPEALS COM'N.
No. 3D09-1656.
District Court of Appeal of Florida, Third District.
April 28, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1554612/ | 36 So.3d 1218 (2010)
Eric VON DRAKE, Plaintiff-Appellant
v.
Edgar Lynn ROGERS, Defendant-Appellee.
No. 45,305-CA.
Court of Appeal of Louisiana, Second Circuit.
May 19, 2010.
Rehearing Denied June 17, 2010.
*1219 Cook, Yancey, King & Galloway, by W. Lake Hearne, for Appellant.
Angela R. Rogers, for Appellee.
Edgar Lynn Rogers, In Proper Person.
Before BROWN, STEWART and CARAWAY, JJ.
CARAWAY, J.
This is an appeal from a judgment of the city court which dismissed the plaintiff's claim on the court's sua sponte peremptory exception. The parties are co-owners of residential property and their multiple disputes have raised claims for an accounting over property-related obligations and for partition in both city court and the First Judicial District Court. The city court in this proceeding recognized that a prior final judgment in district court required dismissal of the action. Finding that such ruling is correct under our principles for res judicata, we affirm.
Facts and Procedural History
This is a longstanding dispute between two brothers over real estate in Shreveport. The property includes a family home which was previously owned by three brothers, Eric Von Drake ("Eric"), Edgar Rogers ("Edgar") and Homer Rogers. Edgar acquired Homer's interest and became a two-thirds interest co-owner in the property. Edgar, along with his wife and son, have resided in the home.
The instant controversy actually involves two related actions which were acknowledged by the city court judge in rendering the present judgment. This suit was filed by Eric on September 22, 2006, in Shreveport City Court, naming Edgar and his wife, Angela, as defendants. The petition alleged that Eric was refused occupancy of the co-owned property and was thus entitled to his share of the fair market rental value of the property. On November 15, 2007, after a trial on the merits, the city court rendered judgment in favor of defendants, dismissing Eric's claim. Eric took a devolutive appeal of the judgment to this court on December 21, 2007.
As these actions in the city court were occurring, however, on September 14, 2007, Edgar filed a second action in the First Judicial District Court in Shreveport, petitioning for a partition of the property (hereinafter the "District Court Action"). Much of the record of the District Court Action is now contained in this record.
A trial in the District Court Action was held on September 8, 2008, and the judgment, signed on September 17, 2008, first decreed full ownership of the property in Edgar. The judgment then states:
Inasmuch as defendant Eric Von Drake a/k/a David Wayne Rogers has failed to pay any portion of taxes in previous years, and to the extent the amount due plaintiff exceeds the original percentage of ownership of defendant Edgar Lynn Rogers but noting the "forgiveness" of any debt over and above the ownership value:
*1220 IT IS ORDERED, ADJUDGED AND DECREED that any further monetary amount requested by plaintiff Edgar Lynn Rogers against defendant Eric Von Drake a/k/a David Wayne Rogers is denied such that, from the date of this judgment, neither party owes the other any monetary amount (emphasis ours).
We additionally note the following oral reasons given by the trial judge at the partition hearing:
Based on the evidence presented that the Court will grant judgment in favor of Edgar Lynn Rogers plaintiff in this matter and against Eric Von Drake also known as David Wayne Rogers. I'm not going to consider the funeral expenses and medical bills and all that as an offset. However, I doI will consider and factor into the damage that's been described as well as all property taxes[1] which I think more than sufficiently offsets the amount of $2,600, that value being one third of $7,800.[2] So Mr. Rogers' testimony that he would forgive that debt, any remaining debt, I believe allows him to be deemed to be the 100 percent owner of the property at issue.
Although this unusual partition ruling in the District Court Action effectively vested full ownership in one co-owner without an actual public sale, the judgment itself was never effectively challenged by Eric. After delays for appeal had run, Eric's motion for appeal from the District Court Action was dismissed with prejudice on May 18, 2009. The partition judgment of the District Court Action is now final.
By October of 2008, Eric's first appeal concerning the city court's dismissal of his rental claims in this action was decided by this court. Von Drake v. Rogers, 43, 546 (La.App.2d Cir.10/8/08), 996 So.2d 608 (hereinafter "Von Drake I"). This court's opinion reflects no knowledge of the finality of the partition judgment of the District Court Action, which had been rendered in the preceding month. Our opinion in Von Drake I reversed the city court's ruling and remanded the case back to city court for determination of Eric's share of the fair rental value of the home from the date of judicial demand of this city court proceeding.
On remand, the city court took judicial notice of the district court's final judgment of partition and thereby recognized that plaintiff, Eric, had no ownership interest in the property. The court thereafter supplied its own exception of no cause of action, stating that the law affords no action for a non-owner to claim fair rental value of the property. The court, "out of an abundance of caution," held a hearing on September 10, 2009, which it limited to a determination of the fair rental value, as directed by this court in Von Drake I. After this hearing, the court signed a judgment on September 11, 2009, sustaining its own exception of no cause of action and further determining the fair rental value of the home during the pertinent time period to be $2,968.75.
Eric now appeals, asserting that the city court's sua sponte exception of no cause of action was improper and further that the judgment was ambiguous in that it did not *1221 actually award the rental amount to Eric, nor specify that this amount was one-third of the total fair rental value.
Discussion
The city court's consideration of the judgment in the District Court Action and its noticing on its own motion the peremptory effect of that prior judgment find support in La. C.C.P. art. 927(B) which provides, in pertinent part:
The nonjoinder of a party, peremption, res judicata, the failure to disclose a cause of action or a right or interest in the plaintiff to institute the suit, or discharge in bankruptcy, may be noticed by either the trial or appellate court on its own motion.
Although the city court voiced the exception as a determination of no cause of action, we will review its ruling under the principles of res judicata since it concerns the legal effect of a prior judgment.
The law of res judicata in Louisiana is set forth in La. R.S. 13:4231 provides as follows:
Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.
Based on the language of the above statute, as enacted in 1990, the following five elements must be satisfied for a finding that a second action is precluded by res judicata: "(1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation." Chevron U.S.A. v. State, 07-2469 (La.9/8/08), 993 So.2d 187, citing, Burguieres v. Pollingue, 02-1385 (La.2/25/03), 843 So.2d 1049; Jones v. Bethard, 39,575 (La. App.2d Cir.4/13/05), 900 So.2d 1081, writ denied, 05-1519 (La.12/16/05), 917 So.2d 1115.
For res judicata purposes, a "valid judgment" is one rendered by a court with jurisdiction over both the subject matter and the parties after proper notice was given. Wooley v. State Farm Fire and Cas. Ins. Co., 04-882 (La.1/19/05), 893 So.2d 746. Under La. C.C.P. art. 1841, a final judgment is one that determines the merits in whole or in part. A judgment that only determines preliminary matters in the course of an action is an interlocutory judgment.
The comments to La. R.S. 13:4231 describe the central inquiry under the statute as not whether the second action is based on the same cause or causes of action, but whether the second action asserts a cause of action which arises out of the transaction or occurrence which was the subject matter of the first action. See comment (a) to La. R.S. 13:4231; Bond v. Bond, 37,264 (La.App.2d Cir.6/25/03), 850 So.2d 1001, writ denied, 03-2602 *1222 (La.12/12/03), 860 So.2d 1156. The comments go on to explain:
For purposes of res judicata it would not matter whether the cause of action asserted in the second action was the same as that asserted in the first or different as long as it arose out of the transaction or occurrence that was the subject matter of the first action.
Partition suits are governed by Title VII, "Ownership in Indivision," of the Louisiana Civil Code and Title IX, "Partition Between Co-owners," of the Louisiana Code of Civil Procedure. Like the titles of the codal provisions pertaining to partitions suggest, co-ownership is the basis of an action for partition. See also, Norah v. Crawford, 218 La. 433, 49 So.2d 751 (1950); Broussard v. Allen, 198 La. 475, 3 So.2d 742 (1941).
A settlement of accounts between co-owners is incidental to an action for partition. Succession of Porche, 187 La. 1069, 175 So. 670 (1937); cf. La. C.C. arts. 798, 799 and 806. Such accounting between co-owners is also highlighted in La. C.C.P. art. 4626, which provides:
A judgment ordering the public sale of property to effect a partition under the provisions of this Chapter shall order, out of the proceeds of such sale:
(1) The reimbursement of a co-owner of the amount proven to be due him for the payment of taxes on the property, and the expenses of preservation thereof; and
(2) The payment to a co-owner of the amount proven to be due him by another co-owner who has received and retained the fruits and revenues of the property.
Although this procedural article concerns the context of absentee co-owners where a petition for licitation is mandated, the article recognizes and requires that an accounting for all taxes and "fruits and revenues" of the property shall be ordered in effectuating the partition.
Even before 1990, under Louisiana's prior narrow interpretation of res judicata, the preclusion doctrine applied more broadly to actions for ownership of immovable property, predicated upon the necessity of protecting and insuring stability and security of title. Ryan v. Grandison Trust, 504 So.2d 844 (La.1987); Mitchell v. Bertolla, 340 So.2d 287 (La.1976); Brown Land & Royalty Co. v. Pickett, 226 La. 88, 75 So.2d 18 (1954). Thus, the Louisiana Supreme Court in Ward v. Pennington, 523 So.2d 1286 (La.1988), recognized that when a claim to ownership is rejected in a first action and that judgment acquires the authority of the thing adjudged, a second action cannot thereafter be brought for the ancillary right to an accounting for the revenues attributable to that adjudged ownership. Accordingly, it was held that "an accounting for the revenues attributable to that ownership is barred by res judicata." Id.
Following the 1990 revision of our res judicata law, a broad interpretation has been afforded the phrase "transaction or occurrence" so as to encompass the parties' disputes involving rights to property. In Floyd v. City of Bossier City, 38,187 (La.App.2d Cir.3/5/04), 867 So.2d 993, a first action was brought by landowners, challenging the validity of a city ordinance, in an attempt to redeem their property after it was seized by the city for nonpayment of taxes. The landowners, who were unsuccessful in the first suit, filed a second action against the city for pecuniary damages for the alleged wrongful refusal of the city to allow the property's redemption. Despite the fact that the landowners sought ownership in the first suit and demanded money damages in the second, the court found that "because the subject matter of both lawsuits fundamentally concerns the parties' right to the property, the final judgment in the first action precluded *1223 any future claims by the [landowners] to the property." Id.
This proceeding and the District Court Action were pending between these parties simultaneously in two courts. To the extent that these suits involved the "same transaction or occurrence," the first final judgment rendered would be conclusive. La. C.C.P. art. 531. In this case, the first judgment rendered from these two actions was the September 17, 2008 partition judgment from the District Court Action. At that time, Eric's first appeal in the present action was pending and the status of the appeal concerned the initial city court judgment dismissing his rental claim. Even with our later ruling in Von Drake I, the case was remanded to city court with no final judgment having been rendered.
With the September 2008 partition judgment being the first valid and final judgment rendered between these parties, the question presented under our res judicata law is whether the causes of action asserted in both actions concerned the same transaction or occurrence.
The District Court Action concerned the co-ownership relationship between the parties. Edgar sought two remedies in the action. The first was to end the parties' co-ownership by partition. The second involved certain accounting claims by Edgar against his co-owner, Eric, including the taxes previously paid by Edgar. Eric was not without recourse in the District Court Action regarding his own accounting claims which, under La. C.C.P. art. 1061, could be made as a reconventional demand and were required as a compulsory counterclaim to the extent that the rent claim arose out of the "same transaction or occurrence" that was the subject matter of Edgar's action. The judgment in the District Court Action which ended the co-ownership relationship also expressly recognized that "from the date of this judgment, neither party owes the other any monetary amount."
Co-ownership was also the basis of Eric's claim for fair rental value. In his original city court petition, Eric purports to establish entitlement to rent through his status as a co-owner of the property:
Plaintiff is the owner of an undivided 1/3 interest in the property located at 927 Madison Avenue, Shreveport, Caddo Parish, Louisiana, and defendant is the owner of the remaining undivided 2/3 interest in said property.
* * * * *
Defendant has refused to allow plaintiff to occupy or use the co-owned property... (emphasis ours).
As determined in Von Drake I, Eric's rental claim was allowable under La. C.C. art. 802, which prohibits a co-owner from preventing another co-owner from using the property held in indivision.
In both actions, the "transaction or occurrence" upon which the parties' claims rest is their co-ownership relationship. That relationship gave rise by operation of law to the monetary obligations each sought to enforce against the other. Their causes of action arose from this legal regime, which falls within the broad meaning of "transaction or occurrence." Accordingly, we find that the same transaction or occurrence was involved in both actions. Therefore, the first judgment obtained in the District Court Action adjudicated the matter, and res judicata under our law applies.
Conclusion
The city court's dismissal of this action on peremptory grounds is affirmed for the reasons set forth above. Costs of appeal are assessed to appellant.
AFFIRMED.
*1224 APPLICATION FOR REHEARING
Before BROWN, WILLIAMS, STEWART, CARAWAY and DREW, JJ.
Rehearing denied.
NOTES
[1] It was shown at the hearing that Eric damaged the front door screen and cut a hole in the outside wall to a rear room in the house. Demolition of the rear room was required at a cost of approximately $1,700. Additionally, Edgar paid Eric's portion, or $626.45, for taxes owing on the home.
[2] The following is provided for in the trial court's reasons for final judgment: "This subject property has a municipal address of 927 Madison Avenue, Shreveport Louisiana and has an appraised value of about $7,800. (See exhibit of November 15, 2007, signed by appraiser Richard Smith)." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919683/ | 91 B.R. 647 (1988)
In re CYCLE-RAMA, INC., Debtor.
Terrie HARMAN, Trustee, Plaintiff,
v.
Raymond BERTHOLET, Jr., Defendant.
Bankruptcy No. 86-00283, Adv. No. 86-124.
United States Bankruptcy Court, D. New Hampshire.
September 29, 1988.
Victor Dahar, Manchester, N.H., for defendant.
David M. Nickless, Nickless & Phillips, Fitchburg, Mass., for trustee.
Terrie Harman, Portsmouth, N.H., Trustee.
*648 MEMORANDUM OPINION
JAMES E. YACOS, Bankruptcy Judge.
The plaintiff-trustee in bankruptcy in this adversary proceeding seeks a monetary judgment in the amount of $71,130.98 against the defendant Raymond Bertholet, Jr. The trustee's complaint as originally filed in 1986 requests relief on a number of different grounds but as the matter was ultimately tried before this court, after a series of pre-trial orders in this adversary proceeding, the trustee's basic contentions boil down to two grounds. These two grounds are a request that the defendant be held liable for all the corporate debts upon a piercing of the corporate veil under an "alter ego" theory of liability, and a request for recovery of certain monies received by the defendant from the debtor corporation as alleged preferences recoverable under § 547 of the Bankruptcy Code.
The defendant was the sole shareholder of Cycle-Rama, Inc. (hereinafter "CRI") at the time of its chapter 7 bankruptcy filing on June 20, 1986. The defendant had acquired that corporation in August of 1985. The defendant was also the sole stockholder of Bertholet Enterprises, Inc. (hereinafter "BEI"), which was a corporation dealing in the retail sale of motorcycles that defendant had operated since the early 1980's in Laconia, New Hampshire. BEI also filed a chapter 7 bankruptcy petition in this court on June 20, 1986. When the defendant acquired CRI in August of 1985, that corporation was engaged in a similar retail motorcycle operation in Plaistow, New Hampshire.
The plaintiff-trustee's basic contention on the alter ego attack, and the evidence she submitted in support thereof, relates to the loose record keeping and the transfers of assets back and forth between BEI and CRI in the eleven-month period from August of 1985 to the bankruptcy filings in June of 1986. However, the trustee of CRI has already, and separately, pursued an adversary proceeding in this case against the trustee of the BEI corporation based on the alter ego theory and other contentions relating to alleged improper transfers by CRI to BEI that she alleged had harmed the creditors of CRI.[1] The separate adversary proceeding has been resolved by a compromise and final order settling all claims between the two bankruptcy estates. Accordingly, the plaintiff-trustee in the present case cannot support an alter ego attack against this individual defendant simply upon grounds that might have supported such an attack against the original corporate defendant (i.e., BEI), but which now have been finally resolved in the separate adversary proceeding.
The trustee argues alternatively, however, that she can obtain alter ego relief against the present individual defendant under controlling New Hampshire law on the separate ground of the alleged under-capitalization of CRI by the defendant from the time of his taking over that corporation in August of 1985 until the bankruptcy filing in June of 1986.
Assuming without deciding that the requisite under-capitalization has been established on this record, I do not agree with the trustee's contention that New Hampshire law permits alter ego relief based upon that factor alone.[2] The New Hampshire *649 Supreme Court has spoken quite clearly upon the standards for alter ego relief, i.e. piercing of a corporate veil to hold the individual shareholder personally liable for corporate debts. See Ashland Lumber Co. v. Hayes, 119 N.H. 440, 402 A.2d 201 (1979); Village Press v. Stephen Edward Co., 120 N.H. 469, 416 A.2d 1373 (1980); Druding v. Allen, 122 N.H. 823, 451 A.2d 390 (1982).[2a]
In the Ashland Lumber case the Supreme Court of New Hampshire set out the reason for caution in granting alter ego relief in a decision affirming a denial of that attack upon the facts presented:
The master's ruling is incorrect. "[O]ne of the desirable and legitimate attributes of the corporate form of doing business is the limitation of the liability of the owners to the extent of their investment." Peter R. Previte, Inc. v. McAllister Florists, Inc., 113 N.H. 579, 582, 311 A.2d 121, 123 (1973). Although we have "not hesitated to disregard the fiction of the corporation as being independent of those who are associated with it as stockholders," id. at 581, 311 A.2d at 123, this case lacks sufficient evidence to permit piercing the corporate veil. As in the Previte case, there is no evidence here of fraudulent conveyance and it is "not claimed that [defendant] suppressed the fact of [his] incorporation or misled the plaintiff as to the corporate assets." Id. at 582, 311 A.2d at 123; cf. Stephenson v. Stephenson, 111 N.H. 189, 194, 278 A.2d 351, 355 (1971) (granting plaintiff-wife's bill in equity to set aside conveyance by defendant-husband's wholly owned corporation). In fact he notified the plaintiff of his incorporation. [119 N.H. at 441, 402 A.2d 201]
As noted, New Hampshire law requires some showing of suppression of the fact of corporate existence, fraud, or some misleading as to corporate assets in order to justify disregard of the corporate entity.
In the Village Press case, the New Hampshire court reversed the lower court judgment applying the alter ego doctrine to pierce the corporate veil and further amplified its standard for such relief as follows:
Plaintiff argues that Blum personally controlled the corporations, making them, in effect, his alter egos. Plaintiff concludes therefrom that Blum is personally liable for their debts. Under the alter ego doctrine, however, piercing the corporate veil is not permitted solely because a corporation is a one-man operation. Farmers Feed & Supply Co. v. United States, 267 F.Supp. 72, 78 (N.D. Iowa 1967); IZE Nantan Bagowa, Ltd. v. Scalia, 118 Ariz. 439, 577 P.2d 725 (Ct.App.1978). Similarly, the fact that one person controls two corporations is not sufficient to make the two corporations and the controlling stockholder the same person under the law. Waff Bros., Inc. v. Bank of N.C., N.A., 289 N.C. 198, 221 S.E.2d 273 (1976).
In order to avail itself of the benefits of the alter ego doctrine, thereby piercing the corporate veil, the plaintiff must establish that the corporate entity was used to promote an injustice or fraud. Quarles v. Fuqua Industries, Inc., 504 F.2d 1358 (10th Cir.1974); Norman v. Del Elia, 111 Ariz. 480, 533 P.2d 537 (1975); Kahili, Inc. v. Yamamoto, 54 Hawaii 267, 506 P.2d 9 (1973); Rosebud Corp. v. Boggio, 39 Colo.App. 84, 88, 561 P.2d 367, 371 (1977). [120 N.H. at 471, 416 A.2d 1373]
Here the New Hampshire court restated the standard somewhat in terms of requiring the plaintiff to "establish that the corporate entity was used to promote an injustice or fraud" as noted in the foregoing citation.
The court in Village Press did note that "other courts" have looked into whether the corporation was under-capitalized in determining an alter ego attack. 120 N.H. at 471, 416 A.2d 1373. However, there is no *650 indication by that reference that the New Hampshire court intended any ruling with regard to that factor since it expressly found that in the Village Press case there was evidence offered of the capitalization or solvency of the two corporations involved.
The New Hampshire Supreme Court in effect did pass upon the "undercapitalization-alone" contention to support alter ego relief in its decision in Druding v. Allen, 122 N.H. 823, 451 A.2d 390 (1982). In that case, the court reversed a trial court judgment allowing the piercing of the corporate veil where the primary contention by the plaintiff was based upon an alleged wrongful depleting of corporate assets by the president and principle shareholder of the involved corporation. The court ruled that the record did not support alter ego relief based upon the withdrawal since the compensation received by the president over three years "was generated entirely by his personal activities and was not unreasonable compensation for his services." 122 N.H. at 827, 451 A.2d 390. The court concluded by restating the applicable standard as follows:
We have held that a court may pierce the corporate veil if a shareholder suppresses the fact of incorporation, misleads his creditors as to the corporate assets, or otherwise uses the corporate entity to promote injustice or fraud. Village Press v. Stephen Edward Co., 120 N.H. 469, 471-72, 416 A.2d 1373, 1375 (1980); Ashland Lumber Co. v. Hayes, 119 N.H. 440, 441, 402 A.2d 201, 202 (1979); Peter R. Previte, Inc. v. McAllister Florist, Inc., 113 N.H. at 582, 311 A.2d at 124. Here, Mr. Astles neither suppressed the fact of incorporation nor misled the plaintiffs as to the corporate assets. Although the master correctly found that Amesbury disregarded certain corporate formalities between 1977 and 1979, he specifically found that the corporate assets remained constant during this period. No evidence existed showing that the lack of formalities was intended to promote injustice or fraud with respect to the plaintiffs. [122 N.H. at 827-28, 451 A.2d 390]
The court had noted earlier in its opinion that the record indicated that, while the corporate assets remained constant during the period of withdrawals, "the corporation was undercapitalized in its last years." 122 N.H. at 826, 451 A.2d 390. Accordingly, although the court in Druding v. Allen did not expressly discuss undercapitalization-alone as a possible sufficient ground for alter ego relief, the effect of the judgment was to affirm a denial of such relief on a record in which undercapitalization was established. This confirms my judgment that the reading of the "undercapitalization" reference in the Village Press opinion is mere descriptive dicta of other court's decisions and is not a ruling as to New Hampshire law.
I therefore conclude that the plaintiff-trustee in the present matter must prove some "injustice" factor, in addition to an assumed undercapitalization, in order to justify alter ego relief under New Hampshire law. It is not surprising, in my opinion, that courts generally require such additional factors over and above undercapitalization in view of the present realities of our highly-leveraged modern economy. Corporate entities now can, and do, operate often with leased premises and leased business machinery, equipment, etcetera (i.e., equipment leases). Whether use of such leasing and financing devices is wise in a particular business at a particular time may be debatable, but a bad business judgment in that regard does not ipso facto constitute "injustice" for alter ego relief purposes when the judgment proves to be wrong and the business fails. The ramifications of a contrary ruling in that regard, in terms of our present corporate economy, would be quite significant and essentially not anticipated, I believe, by the parties engaged in such business transactions.
ALTER EGO RELIEF
In the present case, the record is uncontroverted that, notwithstanding all of the transfers and dealings between the two corporations involved, the individual defendant in the present adversary proceeding did not receive one dollar as a result of *651 those transactions. All monies were used to pay creditors. Indeed, by the time of the bankruptcy filings, the defendant had disposed of his personal property in an attempt to salvage his business and had nothing more than his clothing as personal assets. Moreover, from August of 1985 to June of 1986, the defendant drew no salary from CRI and cut his prior $600 salary in BEI to $300 a week. It is also uncontroverted that the defendant never represented the Plaistow motorcycle business as anything other than a corporate operation under the CRI name.
For all of the foregoing reasons, I conclude that the trustee's complaint, to the extent it requests alter ego relief imposing judgment upon the defendant for personal liability for the corporate debts, must be denied.
VOIDABLE TRANSFERS
The trustee also introduced evidence of a number of checks written by CRI payable to the defendant during the period from January 1986 to the bankruptcy filing in June of 1986, which she contends were preferences and/or fraudulent conveyances. As for the fraudulent conveyance contentions, the record does not establish that this defendant received and held any of the payments involved for his own benefit. Such payments were either reimbursement for proper corporate expenses or were "in-and-out" one-day transfers between the defendant and CRI to cover temporary cash flow shortages. As for the preference contentions, the evidence establishes that any payments made to the defendant prior to June of 1986 were not payments upon antecedent debts. The evidence does establish that a payment of $2,846.61 made by CRI to the defendant by check dated June 17, 1986, some three days prior to the bankruptcy filing, was in fact payment upon an antecedent obligation and did constitute a preference within the meaning of § 547 of the Bankruptcy Code. Accordingly, judgment will be entered for the plaintiff-trustee against the defendant in that amount.
NOTES
[1] The present adversary proceeding originally had the trustee of BEI joined as a defendant with those additional grounds of relief asserted against that trustee and the BEI estate. Those aspects of the present adversary proceeding were severed by a pretrial order of this court entered June 5, 1987 and the severed proceedings were given the adversary proceeding number 86-124A. That adversary proceeding, i.e. ADV# 86-124A, was the subject of a joint motion for approval of compromise filed May 19, 1988, which was approved by this court's orders entered July 6, 1988 in both the BEI and CRI cases. Those orders, and the underlying compromise between the trustees have settled any and all claims between the two bankruptcy estates.
[2] What is requisite capitalization in the modern credit-oriented economy depends a great deal on the nature of the industry involved and on the credit financing alternatives available. It is noted in the present record that the debtor secured a one million dollar line of credit for the CRI operation from his bank and arranged adequate floor-plan financing through various motorcycle manufacturers. The CRI operation apparently proceeded smoothly until snowmobile sales during the Winter of 1986-1987 were far below normal due to unfavorable weather conditions that winter.
[2a] It should be noted that in Village Press, as in the present case, the defendant was the sole stockholder of the two corporate entities involved in the alter ego contention. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/879412/ | No. 87-142
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
JOHN A. DAVIS (FATAL),
VIVIAN MARIE DAVIS,
Claimant and Appellant,
-vs-
GEORGE W. JONES, Employer,
and
MOUNTAIN WEST FARM BUREAU MUTUAL
INSURANCE COMPANY,
Defendant and Respondent.
APPEAL FROM: The Workers' Compensation Court, The Honorable
Timothy Reardon, judge presiding.
COUNSEL OF RECORD:
For Appellant:
Joseph C. Engel, 111, Great Falls, Montana
For Respondent:
Norman H. Grosfield, Helena, Montana
Submitted on Briefs: Aug. 20, 1987
Decided: November 10, 1987
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.
This action appears before us for the third time. The
first two appeals concerned insurer's liability under the
Montana Workers' Compensation Act for the injury that
resulted in the death of claimant's husband. See Jones v.
Davis (1983), 203 Mont. 464, 661 P.2d 859; Jones v. Davis
(Mont. 1985), 701 P.2d 351, 42 St-Rep. 840. This appeal
concerns insurer's liability for claimant's attorney fees.
Claimarlt contends that the fee due from insurer equals
50 percent of benefits awarded. Insurer contends that the
fee due equals 40 percent. The parties also contest the
propriety of awarding fees in a lump sum, and the
responsibility for costs charged by claimant's economist.
Claimant and her attorney signed an agreement providing
for a fee contingent upon success of her claim. The amount
of the fee was to equal 25 percent of benefits if the claim
succeeded prior to hearing before the Workers' Compensation
Court; 33 percent of benefits if the claim succeeded after
hearing before the Workers' Compensation Court; and 40
percent of benefits if the claim succeeded only after appeal
to the Montana Supreme Court.
The fee percentages provided for by the agreement
mirrored the maximum fees that were allowed under A.R.M. S
24.29.3801 (1986), a regulation promulgated by the Division
of Workers' Compensation. Also pursuant to A.R.M. S
24.29.3801 (1986), claimant obtained Division approval of the
agreement.
After the first appeal, claimant and her attorney agreed
to increase the percentage of fees payable upon the ultimate
success of the claim. In place of the 40 percent peak
already established as the proper percentage because of the
first appeal, they substituted 5 0 percent.
Claimant submittd the altered agreement for Division
approval. However, before the Civision had a chance to deny
or approve the altered agreement, claimant withdrew her
request and argued instead for a "good cause" variance from
the original fee agreement's 4 0 percent maximum. For good
cause shown, the regulations themselves provided for a fee
higher than 4 0 percent. See A.R.M. S 24.29.3801(4) (1986).
Claimant also argued that the Division did not have
jurisdiction to determine fees once a claim had advanced to
azjudication before the Workers' Compensation Court.
The Division assumed jurisdiction and denied the
variance. On appeal, the F70rkers1 Compensation Court held
that the Division lacked jurisdiction, and considered the
issue de novo. The Workers' Compensation Court then refused
tc vary from the 40 percent figure Sound in the original
agreement citing this Court's opinion in Wight v. Hughes
Livestock (19831, 204 Nont. 98, 664 P.2d 3 0 3 . The lower
court also refused to lump sum the fees for more than two
years, and refused to assess against insurer costs charged by
claimant's economist. From this ruling claimant appeals. P e7
affirm the lower court's decision.
Appellant presents four issues for review:
(1) Did the Workers' Compensation Court exceed its
jurisdictiori by passing judgment on an issue not raised by
the pleadings?
(2) Does the "good cause" provision found in A.R.M. S
24.29.3801!4) (1986), control over Wight?
(3) Should claimant's attorney receive all the fees in a
lump sum?
(4) Should claimant receive the cost of discounting her
attorney fees to present value? We will consider each issue
separately.
ISSUE 1: Claimant contends that the Workers'
Cornpensation Court erred by failing to base its decision on
claimant's allegation that:
after the erroneous assumption of jurisdiction by
the Division, the Division ignored the evidence
adduced in compliance with the requisites of
24.29.3801 A.R.M. that there was good cause in the
two cases litigated herein to vary from the maximum
fee schedule, as is provided for in subparagraph
(4) of that regulation.
Claimant's argument on 1 lacks merit.
issue She
requested that the lower court apply A.R.M. S 24.29.3801 (4)
(1986), and the court held that "the Civision rules governing
attorney fees on cases before this Court and the Supreme
Court are a nullity." This response squarely addresses the
issue presented by claimant's petition. The fact that the
lower court refused to apply the law as presented by claimant
does not mean that the lower court exceeded its jurisdiction.
As stated by the Supreme Court of Colorado,
The Court is not restricted to theories of counsel,
but has the duty of attempting a just determination
of the issues tendered pursuant to established
rules of law.
Newton Oil Co. v. Bockhold (Colo. 1947), 176 P.2d 904, 906.
ISSUE 2: Claimant's next contention also concerns the
correct authority for determining the amount of attorney
fees. The Workers' Compensation Court applied Wight to find
that the original agreement controlled the percentage for
calculating fees. Wight directed the Workers' Compensation
Court to give nc effect to a contingency agreement amended
after a sriccessful appeal. Wight, 664 P . 2 d at 312. The
amended agreement in Wight provided for a higher percentage
of benefits than the original agreement. Wight, 664 P.2d at
312. Claimant contends that Wight does not apply where the
claimant requests a good cause variance under A.R.M. $
5
24.29.3801 (4) (1986).
This is an issue of administrative law that we have
recently settled. See Bowen v. Super Valu Stores (filed
November 5, 1987), No. 86-253, slip op. at 8. Bowen held
that the "rules adopted by the Department, in this case the
Division, have no application to proceedings before the
Workers' Compensation Court." Bowen, slip op at 8. Thus,
the Workers' Compensation Court correctly concluded that the
Division rule did not apply, and properly proceeded to
analyze the issue under Wight.
Claimant also complains that the Workers' Compensation
Court should have granted some fees on an hourly basis.
According to claimant, the lower court could have exercised
its discretion and granted the 40 percent contingency fee for
the attorney's work on the second appeal, and figured fees
for the first appeal on an hourly basis.
Section 39-71-611, MCA, requires the Workers'
Compensation Court to establish reasonable attorney fees when
the insurer must pay the fees. Where a contingency agreement
exists, the Workers' Compensation Court "'is under a duty to
determine what would he a reasonable attorney fee on a
contingency basis.'" (Emphasis in original). Wight, 664
P.2d at 311 (quoting Clark v. Sage (Idaho 1981), 629 P.2d
657, 660). In determining what is reasonable, "the Workers'
Compensation judge should accept the approved contract as
having a strong presumption in its favor." Wight, 664 P. 2 6
at 312. In this claim, the Workers' Compensation Court. did
not abuse its discretion by finding that the original
agreement controlled the fee.
ISSUE 3: Claimant contends that the law at the time of
the injury to her husband favored lump sum awards of attorney
fees. To support this contention, claimant cites Garlitz v.
Rocky Mountain Keli.copters, WCC No. 1811, decided May 24,
1384. Respondent contends that Swan v. Sletten Const. (~ont.
1986), 726 P.2d 1170, 43 St.Rep. 1926, controls Garlitz, and
in its decision denying claimant's lump sum request, the
Workers' Compensation Court agreed and applied Swan.
Bath parties assume that Garlitz and Swan are
irreconcilable. In Garlitz, the Workers' Compensation Court
exercised its discretion and granted attorney fees in a lump
sum. In Swan, the Workers' Compensation Court exercised its
discretion and refused to lump sum all the fees. Under S
39-71-611, MCA, "the standard of reasonableness includes both
'the amount and kind of fee---lump sum or periodic.'" - -
Swan,
726 P.2d at 1172 (quoting Conway v. Blackfeet Indian
Developers, Inc. (Mont. 1985), 702 P.2d 970, 973, 42 St.Rep.
1020, 1022.) This was the law at the time of the injury in
both cases, and whether or not the Workers' Compensation
Ccurt acted unreasonably in granting a lump sum award in
Garlitz cannot be reviewed in this decision. However, as
stated in Swan, if the lower court denies a lump sum fee
request on the basis that claimant seeks a percentage of
benefits claimant may never receive, we will not overturn the
decision as unreasonable. Swan, 726 P.2d at 1173. Claimant
here seeks fees derived from benefits she will not receive if
she remarries or dies. Thus, the refusal to grant fees in a
lump sum beyond two years was reasonable, and we affirm on
this issue.
ISSUE 4: Section 39-71-611, MCA, provides for the
assessment of reasonable costs against the insurer as well as
attorney fees. In this case, claimant hired an economist to
discount her attorney fees to present value. However, the
lower court's decision to deny the lump sum request negated
the need for the present value calculations, and the
discounted fee was neither presented nor considered. Thus,
in assessing insurer's liability, the lower court concluded
that the discounting costs were unrelated to the issues. We
find that determination reasonable.
FA&^/
Affirmed.
Justice
We Concur:
/ | 01-03-2023 | 06-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2739740/ | Case: 14-3220 Document: 6 Page: 1 Filed: 10/03/2014
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CORAZON MCDONALD,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
______________________
2014-3220
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0752-12-0344-C-1.
______________________
ON MOTION
______________________
ORDER
Corazon McDonald moves for leave to proceed in
forma pauperis.
Upon consideration thereof,
IT IS ORDERED THAT:
The motion is granted.
Case: 14-3220 Document: 6 Page: 2 Filed: 10/03/2014
2 MCDONALD v. ARMY
FOR THE COURT
/s/ Daniel E. O’Toole
Daniel E. O’Toole
Clerk of Court
s21 | 01-03-2023 | 10-03-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/3040122/ | Corrected Reprint 1/19/2007
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 04-10118
Plaintiff-Appellee, D.C. No.
v. CR-01-40201-
EDUARDO SANDOVAL-MENDOZA, SBA-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Argued April 12, 2005
Submitted August 3, 2005
San Francisco, California
Filed December 27, 2006
Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain, and
Andrew J. Kleinfeld, Circuit Judges.
Opinion by Judge Kleinfeld
19943
UNITED STATES v. SANDOVAL-MENDOZA 19947
COUNSEL
Marc J. Zilversmit, San Francisco, California, for appellant
Eduardo Sandoval-Mendoza.
Erika R. Frick, Assistant U.S. Attorney, San Francisco, Cali-
fornia, for the appellee.
OPINION
KLEINFELD, Circuit Judge:
This drug conspiracy case presents two principal issues.
The first is whether the district court erred in ordering defense
counsel not to talk to his client during an overnight recess.
The second is whether the district court abused its discretion
in excluding expert testimony about the defendant’s subnor-
mal intelligence. We reverse.
FACTS
Twin brothers, Eduardo and Ricardo Sandoval-Mendoza,
were convicted of conspiring to sell methamphetamine.
Eduardo Sandoval-Mendoza sold the drugs. He argues that
the government entrapped him as a matter of law. He also
argues that the district court erroneously excluded medical
evidence of an enormous brain tumor that made him espe-
19948 UNITED STATES v. SANDOVAL-MENDOZA
cially vulnerable to entrapment. Ricardo Sandoval-Mendoza
argues that the government presented insufficient evidence to
convict him. We treat Ricardo Sandoval-Mendoza’s appeal
separately in an unpublished disposition.
A family friend named “Marcos” introduced Eduardo
Sandoval-Mendoza to “Tony” in February of 2000. Marcos
and Tony were government informants. Sandoval-Mendoza
sold them about 12 pounds of methamphetamine in three sep-
arate deals.
Sandoval-Mendoza testified. He admitted selling the drugs,
but claimed the government entrapped him. He claimed the
government informants knew a large brain tumor rendered
him especially susceptible to suggestion and preyed upon his
weakness. The tumor was diagnosed in 1992, eight years
before the methamphetamine sales. At first, Sandoval-
Mendoza took medication to shrink the tumor, but quit
because of the side effects. He resumed only when his doctor
told him the tumor would kill him without the medicine.
Sandoval-Mendoza was depressed. He was worried about
dying and about providing for his wife and five children. And
he was worried about the impotence his tumor caused. He
talked about his problems with Marcos, his sister’s boyfriend.
Sandoval Mendoza testified that Marcos told him he made
$5,000 to $10,000 a week selling drugs. Marcos and Tony
suggested that Sandoval-Mendoza sell drugs to make some
money to support his family after he died.
Sandoval-Mendoza testified that he refused to sell drugs for
several months, lacking both the experience and the inclina-
tion. But eventually he caved in, making three sales to Marcos
and Tony. He testified that he sold them drugs only because
they used his depression and fear to persuade him, and that he
never sold drugs to anyone else.
Sandoval-Mendoza’s account is not entirely credible. On
wiretap recordings he sounds suspiciously like an experienced
UNITED STATES v. SANDOVAL-MENDOZA 19949
drug dealer, not a neophyte. He testified that a relative, a fugi-
tive drug dealer in Mexico, told him what to say and how to
portray himself. This relative also connected him with suppli-
ers in Los Angeles.
Neither of the government informants took the stand to
contradict Sandoval-Mendoza’s entrapment defense or offer
an alternative explanation. Tapes of their conversations with
Sandoval-Mendoza came into evidence, but the government
did not put them on the stand. And the informants had an
incentive to entrap Sandoval-Mendoza. The government paid
them money for their assistance as well as offering benefits in
their own criminal cases.
To bolster his entrapment defense, Sandoval-Mendoza
sought to introduce expert testimony explaining that his large
brain tumor damaged his intelligence, memory, and judgment,
making him especially susceptible to suggestion. Sandoval-
Mendoza’s lawyer’s theme for the jury was “thou shalt not
put a stumbling block before the blind.”1 His defense theory
was that the government improperly induced a sick and sug-
gestible man to sell drugs.
The district court admitted some evidence in support of
Sandoval-Mendoza’s defense, permitting his sister and ex-
wife to testify that his tumor made him forgetful. But it
excluded all the defense expert testimony. The defense had a
neuropsychologist and a neurologist ready to testify that the
brain tumor did indeed impair Eduardo’s intellect and judg-
ment. After an in camera Daubert2 hearing, the district court
excluded the expert testimony, partly because it did not dem-
onstrate the tumor caused suggestibility and partly because it
would be long and confusing. Sandoval-Mendoza argues that
this error requires reversal.
1
Leviticus 19:14.
2
See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-95
(1993).
19950 UNITED STATES v. SANDOVAL-MENDOZA
The government cross examined Sandoval-Mendoza over
the course of two days, spanning a morning recess, a lunch
recess, an overnight recess, and another recess on the second
day. The district court ordered Sandoval-Mendoza and his
lawyer not to communicate with each other during the
recesses regarding Sandoval-Mendoza’s testimony, including
the overnight recess. The district court allowed communica-
tion on other matters,“just not concerning his testimony.”
Once cross examination was over, the prohibition was lifted.
Sandoval-Mendoza was convicted and sentenced to 235
months. He appeals, claiming entrapment as a matter of law,
error in excluding his expert witnesses’ testimony, error in
limiting his consultation with counsel, and error on other
grounds.
ANALYSIS
I. Entrapment.
The jury instruction required the government to prove
beyond a reasonable doubt that Sandoval-Mendoza was not
entrapped. The jury decided that Sandoval-Mendoza was not
entrapped. But Sandoval-Mendoza argues that he was entrap-
ped as a matter of law. We review de novo.3 We “will not dis-
turb the jury’s finding unless, viewing the evidence in the
government’s favor, no reasonable jury could have concluded
that the government disproved the elements of the entrapment
defense.”4
[1] Entrapment has two elements: “government inducement
of the crime and the absence of predisposition on the part of
3
United States v. Si, 343 F.3d 1116, 1125 (9th Cir. 2003) (citation omit-
ted).
4
United States v. Mendoza-Prado, 314 F.3d 1099, 1102 (9th Cir. 2002)
(citation omitted).
UNITED STATES v. SANDOVAL-MENDOZA 19951
the defendant.”5 Inducement is “any government conduct cre-
ating a substantial risk that an otherwise law-abiding citizen
would commit an offense.”6 We assume Sandoval-Mendoza
proved inducement because the government did not dispute
that its informants proposed the drug sales.
[2] Even so, Sandoval-Mendoza does not establish absence
of predisposition as a matter of law. “Where the Government
has induced an individual to break the law and the defense of
entrapment is at issue, as it was in this case, the prosecution
must prove beyond reasonable doubt that the defendant was
disposed to commit the criminal act prior to first being
approached by Government agents.”7 The government pres-
ented evidence Sandoval-Mendoza was predisposed to sell
drugs, including wiretap recordings of him talking as though
he were an experienced drug dealer. Offering to buy drugs
from a drug dealer is not entrapment, even if the government
“sets the dealer up” by providing an informant pretending to
be a customer, because the dealer is already predisposed to sell.8
In order to prove he was entrapped as a matter of law,
Sandoval-Mendoza must “point to undisputed evidence mak-
ing it patently clear that an otherwise innocent person was
induced to commit the illegal act by trickery, persuasion, or
fraud of a government agent.”9 He argues that his testimony
that he resisted the pressure to sell drugs to the government
informants and never sold drugs to anyone else was undis-
5
United States v. Skarie, 971 F.2d 317, 320 (9th Cir. 1992).
6
United States v. Poehlman, 217 F.3d 692, 698 (9th Cir. 2000) (citation
omitted).
7
Jacobson v. United States, 503 U.S. 540, 548-549 (1992) (citation
omitted).
8
United States v. Poehlman, 217 F.3d 692, 701 (9th Cir. 2000) (“Where
government agents merely make themselves available to participate in a
criminal transaction, such as standing ready to buy or sell illegal drugs,
they do not induce commission of the crime.”).
9
United States v. Mendoza-Prado, 314 F.3d 1099, 1102 (9th Cir. 2002).
19952 UNITED STATES v. SANDOVAL-MENDOZA
puted because he testified and the informants did not. But the
jury did not have to believe Sandoval-Mendoza. Uncontra-
dicted testimony is not necessarily undisputed evidence.10
Jurors may reject uncontradicted testimony when cross exam-
ination, other evidence, or their own common sense and ordi-
nary experience convince them the testimony is probably
false. “Even perfectly plausible allegations can be disbelieved
if they occur during the course of a generally implausible
account.”11 The wiretap recordings in which Sandoval-
Mendoza pretended to be or really was an experienced drug
dealer belie his testimony. The jury could have believed
Sandoval-Mendoza’s drug dealer relative coached him and he
was just pretending. But it didn’t have to.
[3] The jury could have found that Sandoval-Mendoza was
entrapped. But its conclusion to the contrary was supported by
enough evidence to meet the Jackson12 standard. This is not
a case like Jacobson,13 where the government failed to present
any evidence of predisposition at all. Entrapment was prop-
erly left to the jury.
10
Wilbur-Ellis Co. v. The M/V Captayannis “S”, 451 F.2d 973, 974 (9th
Cir. 1971) (per curiam) (holding “the court is not bound to accept uncon-
troverted testimony at face value if it is improbable, unreasonable or other-
wise questionable.”) (citing Quock Ting v. United States, 140 U.S. 417,
420-21 (1891)).
11
Grotemeyer v. Hickman, 393 F.3d 871, 879 (9th Cir. 2004) (“When
a witness’s account is as unlikely as the events portrayed in a Marc Cha-
gall painting, the jury is entitled to reject the testimony in its entirety, dis-
believing both the reasonable and the unreasonable aspects.”).
12
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (holding “the relevant
question is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.”) (emphasis in original)
(citation omitted).
13
Jacobson v. United States, 503 U.S. 540 (1992).
UNITED STATES v. SANDOVAL-MENDOZA 19953
II. The order limiting attorney-client discussion.
Sandoval-Mendoza testified over the course of three days.
The government’s cross examination spanned a morning
recess, a lunch recess, an overnight recess, and another morn-
ing recess the following day. The district court instructed
Sandoval-Mendoza and his lawyer not to discuss his testi-
mony during any of the recesses, but permitted them to dis-
cuss anything else. Sandoval-Mendoza’s lawyer objected and
was overruled. When the cross examination ended, the district
court permitted Sandoval-Mendoza and his lawyer to discuss
his testimony before redirect.
Sandoval-Mendoza argues that the district court’s order
prohibiting him from discussing his testimony with his lawyer
during the recesses amounted to a structural error under
Geders v. United States14 and Perry v. Leeke.15 Perry and
Geders reach opposite conclusions based on different facts. In
Geders, the trial court prohibited all communication between
the defendant and his lawyer during an overnight recess
between direct and cross examination. The Supreme Court
held that this prohibition required reversal because it deprived
the defendant of his Sixth Amendment right to counsel.16 In
Perry, the trial court prohibited all communication between
the defendant and his lawyer during a fifteen minute recess
between direct and cross examination. The Supreme Court
held that this prohibition did not violate the Sixth Amendment.17
Perry distinguished Geders, on the ground that “the normal
consultation between attorney and client that occurs during an
overnight recess would encompass matters that go beyond the
content of the defendant’s own testimony — matters that the
14
Geders v. United States, 425 U.S. 80 (1976).
15
Perry v. Leeke, 488 U.S. 272 (1989). See also United States v. Santos,
201 F.3d 953 (7th Cir. 2000); Mudd v. United States, 798 F.2d 1509 (D.C.
Cir. 1986).
16
Geders v. United States, 425 U.S. 80, 91-92 (1976).
17
Perry v. Leeke, 488 U.S. 272 (1989).
19954 UNITED STATES v. SANDOVAL-MENDOZA
defendant does have a constitutional right to discuss with his
lawyer, such as the availability of other witnesses, trial tactics,
or even the possibility of negotiating a plea bargain.”18
The facts of this case fall in the middle. The district court
instructed Sandoval-Mendoza’s lawyer, “You can communi-
cate. Just not concerning cross, his testimony, now that he’s
on cross-examination, unless that’s concluded. That doesn’t
mean you can’t talk with your client at all, just not concerning
his testimony.” On the one hand, the district court prohibited
communication between Sandoval-Mendoza and his lawyer
during an overnight recess, suggesting Geders controls. On
the other hand, the district court only prohibited Sandoval-
Mendoza and his lawyer from discussing his testimony, rather
than anything at all, suggesting Perry controls.
The core issue is whether prohibiting a defendant and his
lawyer from discussing his testimony during an overnight
recess violates the Sixth Amendment. Two other circuits have
addressed this question. In Mudd v. United States, the District
of Columbia Circuit held a similar prohibition unconstitu-
tional under Geders.19 And in United States v. Santos, the
Seventh Circuit held a similar prohibition unconstitutional
under Perry.20
This is a difficult question. Cross examination best exposes
the truth when a witness must answer questions unaided.
Coaching may vitiate its value. But it is hard to see how a
defendant and his lawyer can communicate without implicit
coaching. The Seventh Circuit suggests that “the judge may
instruct the lawyer not to coach his client” but may not pro-
hibit discussion of the client’s testimony.21 But that is not a
workable rule, because coaching is implicit in any discussion
18
Perry v. Leeke, 488 U.S. 272, 284 (1989).
19
Mudd v. United States, 798 F.2d 1509 (D.C. Cir. 1986).
20
United States v. Santos, 201 F.3d 953 (7th Cir. 2000).
21
United States v. Santos, 201 F.3d 953, 965 (7th Cir. 2000).
UNITED STATES v. SANDOVAL-MENDOZA 19955
of a defendant’s testimony, even if the defendant’s lawyer
tries his best to avoid coaching.22
[4] We conclude that any overnight ban on communication
falls on the Geders side of the line and violates the Sixth
Amendment. That seems the fairer reading of Perry, which
only permitted prohibitions on communication between a
defendant and his lawyer during a “brief recess.”23 Perry rec-
ognized a defendant has a “constitutional right” to discuss
matters other than his own testimony with his lawyer, “such
as the availability of other witnesses, trial tactics, or even the
possibility of negotiating a plea bargain,” during an overnight
recess.24 And it conceded that “such discussions will inevita-
bly include some consideration of defendant’s ongoing testimo-
ny.”25 Indeed, it is hard to see how a defendant’s lawyer could
ask him for the name of a witness who could corroborate his
testimony or advise him to change his plea after disastrous
testimony, subjects Perry expressly says a defendant has a
right to discuss with his lawyer during an overnight recess,
without discussing the testimony itself.
[5] Thus, we conclude that trial courts may prohibit all
communication between a defendant and his lawyer during a
brief recess before or during cross-examination, but may not
restrict communications during an overnight recess.26 This
22
As has been recognized for millennia, even neutral judges find it hard
to avoid teaching a witness what would be useful to him, when judges
question the witness. “Be thorough in the interrogation of witnesses, and
be careful in thy words, lest from them they learn to utter falsehood.”
Aboth 1:9 (J. Israelstam trans.), in 4 The Babylonian Talmud 7 (I. Epstein
ed. 1935).
23
Perry v. Leeke, 488 U.S. 272, 283-84 (1989).
24
Perry v. Leeke, 488 U.S. 272, 284 (1989).
25
Perry v. Leeke, 488 U.S. 272, 284 (1989).
26
“We merely hold that the Federal Constitution does not compel every
trial judge to allow the defendant to consult with his lawyer while his testi-
mony is in progress if the judge decides that there is a good reason to
interrupt the trial for a few minutes.” Perry v. Leeke, 488 U.S. 272, 284-
285 (1989).
19956 UNITED STATES v. SANDOVAL-MENDOZA
simple rule is consistent with the reasoning of Geders and
Perry. And it has several other advantages. First, it is easy to
understand and apply. Second, it dispenses with pretense.
Jurors can believe that a defendant did not communicate with
his lawyer during a bathroom break. But only a lawyer more
wedded to words than common sense can believe that a defen-
dant communicated with his lawyer during an overnight
recess without at least implicitly discussing his testimony.
Third, as Geders explains, prosecutors and judges can
address the coaching problem without prohibiting communi-
cation during an overnight recess. The trial court may “exer-
cise reasonable control” over the order and timing of direct
and cross examination in order to “make the interrogation and
presentation effective for the ascertainment of the truth.”27 For
instance, it “may direct that the examination of the witness
continue without interruption until completed” or “arrange the
sequence of testimony so that direct- and cross-examination
of a witness will be completed without interruption.”28 If a
defense lawyer strings out direct examination until the usual
time for the evening recess, the court can delay the recess and
give the prosecutor a few minutes to get in some cross exami-
nation.
Thus, we conclude that the district court erred in prohibit-
ing Sandoval-Mendoza and his lawyer from discussing his
testimony during an overnight recess. But does the error
require reversal? While Geders implies it does,29 Geders, a
1976 decision, preceded many recent Supreme Court deci-
sions requiring prejudice as well as constitutional error for rever-
sal.30 Still, under the recent Supreme Court decision in United
States v. Gonzales-Lopez,31 if an error is structural, prejudice
27
Fed. R. Evid. 611(a).
28
Geders v. United States, 425 U.S. 80, 90 (1976).
29
Geders v. United States, 425 U.S. 80, 91 (1976).
30
E.g. Neder v. United States, 527 U.S. 1, 8 (1999).
31
United States v. Gonzales-Lopez, 548 U.S. ___ (2006).
UNITED STATES v. SANDOVAL-MENDOZA 19957
is irrelevant. We need not decide whether or not an overnight
prohibition of communications regarding the defendant’s tes-
timony is structural error, because another error, described
below, independently requires reversal.
III. The Excluded Expert Witness Testimony.
“We review the district court’s decision to exclude expert
witness testimony for abuse of discretion.”32
Sandoval-Mendoza wanted to present expert testimony
concerning his mental condition and susceptibility to sugges-
tion. He offered two expert witnesses: Dr. Michael Shore, a
neuropsychologist, and Dr. J. Richard Mendius, a neurologist.
The prosecutors also proposed expert witnesses: Dr. Ronald
H. Roberts, a neuropsychologist, and Dr. Richard Cuneo, a
neurologist. The district court held a Daubert33 hearing on
whether any of these expert witnesses would be permitted to
testify.
Defense witness Michael Shore, Ph.D., is a psychologist
with extensive clinical and teaching experience in neuropsy-
chology, focusing on the rehabilitation of patients suffering
from brain damage caused by strokes, tumors, and other
causes. He testified that Sandoval-Mendoza suffered from an
unusually large pituitary tumor measuring 2 x 2 x 3 centime-
ters, about the size of an apricot, when diagnosed. The tumor
compressed Sandoval-Mendoza’s frontal lobe, temporal lobe,
and thalamus, probably causing damage. Medication eventu-
ally shrank Sandoval-Mendoza’s tumor to some degree, but
could not reverse any brain damage.
The relationship between brain damage and cognitive
impairment is well-documented. Tumors like Sandoval-
32
United States v. Bahena-Cardenas, 411 F.3d 1067, 1078 (9th Cir.
2005) (citation omitted).
33
Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993).
19958 UNITED STATES v. SANDOVAL-MENDOZA
Mendoza’s may affect mental condition in two ways. First,
damage to the pituitary gland may affect thyroid production,
causing mood disorders, including depression. Second, direct
damage to the frontal lobe, temporal lobe, and thalamus may
affect memory, decision-making, judgment, mental flexibility,
and overall intellectual capacity. In particular, damage to the
frontal lobe often affects concentration, focus, learning, mem-
ory, decision-making, reasoning, judgment, and problem-
solving, according to Dr. Shore.
A battery of routine and widely-accepted tests showed
Eduardo suffered from brain damage affecting his cognitive
condition. Although an performance IQ test showed border-
line mental retardation and a mental age of eleven, Dr. Shore
concluded Sandoval-Mendoza’s school and work history were
not consistent with retardation, and attributed the test results
to his tumor. A classic nineteenth-century study showed fron-
tal lobe damage causes a person to have “the passions of a
man but the mind of a child,” increasing suggestibility. In
Sandoval-Mendoza’s case, the brain damage apparently
affected the “passions of a man” as well, because the tumor
made him impotent.
Defense witness Dr. J. Richard Mendius, M.D., is a board-
certified neurologist with additional expertise in clinical
neurophysiology. He testified that a magnetic resonance
imaging test showed Sandoval-Mendoza suffers from an
unusually large pituitary tumor. When the tumor shrank after
treatment, the frontal lobe herniated into the empty space. The
tumor also caused atrophy of the inside of the left temporal
lobe and penetrated a bone separating the pituitary gland from
the brain stem. Brain damage of this kind tends to affect judg-
ment, memory, and emotions connected to memory. A perfor-
mance IQ test suggested a very low level of intellectual
function. Both Shore and Mendius testified that they knew of
no studies specifically linking brain damage of this kind with
susceptibility to inducement to commit crimes. But they noted
that it commonly causes disinhibition.
UNITED STATES v. SANDOVAL-MENDOZA 19959
Prosecution witness Ronald H. Roberts, Ph.D., is a neurop-
sychologist who mainly testifies as an expert witness. Roberts
agreed Sandoval-Mendoza suffered from an unusually large
tumor. However, he believed Sandoval-Mendoza was deliber-
ately underperforming on memory texts. He also believed the
tumor did not significantly affect Sandoval-Mendoza’s perfor-
mance IQ test result. Though he did not contradict the deter-
minations from the MRI films that Sandoval-Mendoza had an
extremely large tumor, he gave the opinion that on the mem-
ory tests, Sandoval-Mendoza was faking a worse memory
than he really had.
Prosecution witness Dr. Richard Cuneo, M.D., is a neurolo-
gist. Cuneo agreed Sandoval-Mendoza suffered from an
unusually large pituitary tumor near areas of the brain control-
ling behavior and cognition. But medical understanding of
behavior and cognition is preliminary and inconclusive. Dr.
Cuneo thought the studies presented were inadequate to show
that Sandoval-Mendoza’s tumor and brain damage affected
his behavior and cognition because the studies were retrospec-
tive and involve small samples. A patient of Dr. Cuneo’s had
a similar tumor that neither caused brain damage nor affected
behavior and cognition. Sandoval-Mendoza’s magnetic reso-
nance imaging test did not show any brain damage, in Dr.
Cuneo’s opinion. While some brain tumors may cause disin-
hibition or greater susceptibility to influence, pituitary tumors
do not, unless they are even larger than Sandoval-Mendoza’s.
Dr. Cuneo conceded that Sandoval-Mendoza’s performance
IQ test was borderline “retarded” and mentally retarded peo-
ple are “known to be susceptible to the influence of others.”
After the Daubert hearing, the district court excluded the
expert testimony as “not relevant to the entrapment defense”
because it “does not tend to show either inducement or a lack
of predisposition attributable to the tumor.” The court based
its ruling on the expert testimony’s “lack of scientific validi-
ty” and “absence of ability to make a causal connection”
between the tumor and inducement or predisposition. Alterna-
19960 UNITED STATES v. SANDOVAL-MENDOZA
tively, it concluded that the “probative value” of the expert
testimony was “outweighed by the dangers of confusing the
issues, misleading the jury, and creating undue delay,” and
“would be extremely confusing to both the court and the jury”
especially “given the fact that the defense witnesses will then
be rebutted by government witnesses.”
As a consequence, only Sandoval-Mendoza himself, his ex-
wife, and his sister could testify that his brain tumor made
him forgetful and suggestible. The defense had another wit-
ness prepared to testify that Sandoval-Mendoza once drank
his own urine sample, having forgotten what it was, but the
witness disappeared after the prosecutor advised her that as an
illegal alien she could be putting herself at risk of deportation.
But jurors might well disregard the lay evidence that came in
as biased and lacking scientific foundation, since they were
deprived of medical evidence.
Although the abuse of discretion standard of review is lib-
eral, the district court’s decision to exclude the expert testi-
mony creates a “definite and firm conviction that the district
court committed a clear error of judgment.”34 Daubert makes
the district court a gatekeeper, not a fact finder. When credi-
ble, qualified experts disagree, a criminal defendant is entitled
to have the jury, not the judge, decide whether the govern-
ment has proved its case.35
[6] Federal Rule of Evidence 702 governs the admission of
expert opinion testimony.36 Under Daubert37 and Kumho Tire,38
34
Clausen v. M/V New Carissa, 339 F.3d 1049, 1055 (9th Cir. 2003).
35
Dorn v. Burlington N. Santa Fe R.R. Co., 397 F.3d 1183, 1196 (9th
Cir. 2005).
36
“If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise.”
Fed. R. Evid. 702.
37
Daubert v. Merrell Dow Pharms, 509 U.S. 579 (1993).
38
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
UNITED STATES v. SANDOVAL-MENDOZA 19961
only relevant and reliable expert opinion testimony is admissi-
ble. Expert opinion testimony is relevant if the knowledge
underlying it has a “valid . . . connection to the pertinent inqui-
ry.”39 And it is reliable if the knowledge underlying it “has a
reliable basis in the knowledge and experience of [the rele-
vant] discipline.”40
[7] Trial courts must exercise reasonable discretion in eval-
uating and in determining how to evaluate the relevance and
reliability of expert opinion testimony.41 Daubert and Kumho
Tire suggest factors trial courts may consider when evaluating
the relevance and reliability of expert opinion testimony. For
example, in evaluating the reliability of scientific expert opin-
ion testimony, trial courts may consider: “(1) whether the sci-
entific theory or technique can be (and has been) tested, (2)
whether the theory or technique has been subjected to peer
review and publication, (3) whether there is a known or
potential error rate, and (4) whether the theory or technique
is generally accepted in the relevant scientific community.”42
Of course, “there are many different kinds of experts, and
many different kinds of expertise,” so these factors “may or
may not be pertinent in assessing reliability, depending on the
nature of the issue, the expert’s particular expertise, and the
subject of his testimony.”43
39
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999) (quoting
Daubert v. Merrell Dow Pharms, 509 U.S. 579, 592 (1993)).
40
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999) (quoting
Daubert v. Merrell Dow Pharms, 509 U.S. 579, 592 (1993)).
41
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999); Mukhtar
v. Cal. State Univ., 299 F.3d 1053, 1064 (9th Cir. 2002) (“A trial court not
only has broad latitude in determining whether an expert’s testimony is
reliable, but also in deciding how to determine the testimony’s reliabili-
ty.”) (citation omitted).
42
Mukhtar v. Cal. State Univ., 299 F.3d 1053, 1064 (9th Cir. 2002)
(summarizing Daubert v. Merrell Dow Pharms., 509 U.S. 579, 592-94
(1993)).
43
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999).
19962 UNITED STATES v. SANDOVAL-MENDOZA
[8] When evaluating specialized or technical expert opinion
testimony, “the relevant reliability concerns may focus upon
personal knowledge or experience.”44 Because medical expert
opinion testimony “is based on specialized as distinguished
from scientific knowledge, the Daubert factors are not
intended to be exhaustive or unduly restrictive.”45 Under our
decision in Sullivan v. United States Dep’t of the Navy, the
district court “applied an inappropriately rigid Daubert stan-
dard to medical expert testimony” by not accepting what “a
good [physician] would in determining what is reliable
knowledge in the [medical] profession.”46 A trial court should
admit medical expert testimony if physicians would accept it
as useful and reliable. Utility to the jury of medical expert tes-
timony should be determined by what physicians would
accept as useful.
[9] The district court concluded that the proposed medical
expert opinion testimony was unreliable because it did not
conclusively prove Sandoval-Mendoza’s brain tumor caused
susceptibility to inducement or a lack of predisposition. But
medical knowledge is often uncertain. The human body is
complex, etiology is often uncertain, and ethical concerns
often prevent double-blind studies calculated to establish sta-
tistical proof. This does not preclude the introduction of medi-
cal expert opinion testimony when medical knowledge
“permits the assertion of a reasonable opinion.”47
[10] Predisposition or its absence is the focus of an entrap-
ment defense.48 Therefore, medical expert opinion testimony
showing that a medical condition renders a person unusually
44
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999).
45
Sullivan v. U.S. Dep’t of the Navy, 365 F.3d 827, 834 (9th Cir. 2004).
46
Sullivan v. U.S. Dep’t of the Navy, 365 F.3d 827, 833-34 (9th Cir.
2004).
47
United States v. Finley, 301 F.3d 1000, 1007 (9th Cir. 2002) (citation
omitted).
48
United States v. Slaughter, 891 F.2d 691, 697 (9th Cir. 1989)
UNITED STATES v. SANDOVAL-MENDOZA 19963
vulnerable to inducement is highly relevant to an entrapment
defense. If it is adequately supported by medical expert opin-
ion, it is admissible. Sandoval-Mendoza’s experts were well
qualified and had sufficient expertise in the neurology of
brain tumors and his particular case to be useful to the jury.
The district court’s exclusion of medical expert opinion testi-
mony prevented Sandoval-Mendoza from showing lack of
predisposition, “and thereby deprived him of a fair opportu-
nity to defend himself.”49 In this case, the foundation was suf-
ficient. After hearing Drs. Mendius and Shore, the jury could
have decided to disbelieve them. But Sandoval-Mendoza was
entitled to have the jury decide upon their credibility, rather
than the judge. As it was, the jury was left with nothing but
unpersuasive lay evidence on a medical matter beyond what
laymen could usefully testify about.
[11] The district court excluded the medical expert opinion
testimony alternatively in order to avoid “unfair prejudice,
confusion of the issues, or misleading the jury, or by consider-
ations of undue delay, waste of time, or needless presentation
of cumulative evidence.”50 But there could be no “confusion
of the issues” because predisposition was the issue. Sandoval-
Mendoza’s only defense was entrapment, and entrapment
came down to predisposition. And there was no risk of “mis-
leading the jury.” The experts agreed Sandoval-Mendoza has
an unusually large brain tumor. Their only disagreement was
whether it caused susceptibility to inducement. The jury was
capable of weighing the conflicting medical expert opinion
testimony against the rest of the evidence presented and deter-
mining whether or not predisposition existed. As for “undue
delay,” testimony would likely consume no more time than
the Daubert hearing, and probably much less.
[12] Without the medical expert opinion testimony, the real
issue in dispute was hidden from the jury. It could not deter-
49
United States v. Slaughter, 891 F.2d 691, 698 (9th Cir. 1989)
50
Fed. R. Evid. 403.
19964 UNITED STATES v. SANDOVAL-MENDOZA
mine whether the government’s informants induced a vulnera-
ble and suggestible man to break the law. The informants did
not testify, so the jury could not evaluate the pressure they put
on Sandoval-Mendoza. It could not evaluate the merits of
Sandoval-Mendoza’s suggestibility, because the medical
expert opinion testimony concerning the possibility his tumor
or limited mental capacity made him susceptible to induce-
ment was excluded. All the jury had was proof that Sandoval-
Mendoza sold drugs, wiretap recordings in which he sounded
like an experienced drug dealer, and a couple of lay witnesses
testifying that he was addled by a brain tumor. Sandoval-
Mendoza is entitled to present his case to the jury. For that,
he deserves a new trial.
Because this error requires reversal, we need not reach
Sandoval-Mendoza’s other claims.
REVERSED. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1298589/ | 558 S.E.2d 736 (2002)
253 Ga. App. 149
The STATE
v.
WHITLOW et al.
No. A02A0298.
Court of Appeals of Georgia.
January 4, 2002.
David McDade, Dist. Atty., James E. Barker, Asst. Dist. Atty., for appellant.
Wade, Walker & Associates, Marietta, Christopher L. Walker, Alison S. Kubiak, Atlanta, Lee W. Fitzpatrick, for appellees.
PHIPPS, Judge.
After marijuana was found in their car during a traffic stop, Carnell Whitlow and Quintin Jackson were charged with violations of the Georgia Controlled Substances Act. The State appeals the trial court's grant of their motions to suppress the evidence. Viewing the evidence in a light most favorable to the trial court's judgment, we affirm.
After observing a car weaving in and out of its lane of traffic on Interstate 20, Douglasville Police Officer Wade Rogers effected a traffic stop to check the sobriety of the driver, Whitlow. According to Rogers, Whitlow produced a valid driver's license, gave no indication that he was under the influence of alcohol or drugs, although he was very nervous, and sought to explain his irregular driving by stating that he was operating a rental car and was unfamiliar with the way it handled. He also informed Rogers that he *737 was returning to Alabama after having been in the Campbellton Road area of Atlanta.
Rogers then asked the vehicle's front seat passenger, Jackson, for the automobile rental contract. According to Rogers, Jackson was very defensive and also extremely nervous. Upon examining the rental contract, Rogers saw that Jackson had rented the car in Alabama that day; that he had paid by credit card titled in the name of a business; and that the rental contract listed Jackson as the sole authorized driver, even though (as ascertained by Rogers) Jackson's license had been suspended. When Rogers asked Jackson about his travel itinerary, he responded that he had been to the Windy Hill Road area of Atlanta in Marietta on a personal matter.
After issuing Whitlow a warning citation for failure to maintain his lane of traffic, Rogers asked Jackson for consent to search the vehicle, but Jackson refused. Rogers testified that he asked for consent to the search, in part because a trend has developed in which interstate travelers rent vehicles, come to Atlanta from other areas to purchase narcotics, and return on the same day. A drug detection dog arrived on the scene approximately 20 minutes after the stop was made and, during an open air sniff, alerted on the presence of narcotics in the vehicle. A search of the vehicle revealed a large garbage bag full of marijuana in a suitcase in the trunk.
"`[T]he stop of a vehicle is authorized if an officer observes the commission of a traffic offense.' [Cit.]"[1] However, "[a]n officer who questions and detains a suspect for other reasons exceeds the scope of permissible investigation unless he has `reasonable suspicion' of other criminal activity."[2]
In a line of cases represented by Roundtree v. State,[3]Pitts v. State,[4] and State v. Hall,[5] this court held that when the subjects of a traffic stop appear unusually nervous and give conflicting answers to routine questions posed by the investigating officer during the stop, reasonable suspicion of criminal activity exists. In Migliore v. State of Ga.,[6] however, we held that where the statements attributed to the individuals who were questioned did not contain meaningful inconsistencies, reasonable suspicion to detain and investigate for illicit drug activity did not arise from their nervousness. Simmons v. State[7] held that nervousness on the part of the driver and passenger, plus the fact that they were driving a car rented by an individual who was not present in the car, did not add up to reasonable suspicion of criminal activity.
This case is similar to Migliore and Simmons, in that there are meaningless inconsistencies in the subjects' answers, nervousness, and the absence of an authorized driver under the automobile rental agreement. Neither in isolation nor in their totality do these facts give rise to reasonable suspicion of illegal drug activity or other criminal behavior. Nor was reasonable suspicion of illegal drug activity necessarily established by the officer's testimony that he detained Jackson and Whitlow in part because of the trend concerning rental car usage and drug trafficking. In the order granting the motions to suppress, the court gave this testimony no weight. This the court was authorized to do, as "(determining the c)redibility of witnesses and the weight to be given their testimony is a ... power that lies solely with the trier of fact. The trier of fact is not obligated to believe a witness even if the testimony is uncontradicted and may accept or reject any portion of the testimony. [Cit.]"[8] Moreover, it is not illegal to rent a *738 car in Alabama and drive it to Georgia for the day. Construed most favorably to upholding the findings and judgment of the trial court, the evidence supports its grant of the motions to suppress.[9]
Judgment affirmed.
MIKELL, J., concurs.
ANDREWS, P.J., concurs in judgment only.
NOTES
[1] State v. Bute, 250 Ga.App. 479, 481, 552 S.E.2d 465 (2001).
[2] State v. Blair, 239 Ga.App. 340, 341, 521 S.E.2d 380 (1999).
[3] 213 Ga.App. 793, 446 S.E.2d 204 (1994).
[4] 221 Ga.App. 309, 311(2), 471 S.E.2d 270 (1996).
[5] 235 Ga.App. 412, 509 S.E.2d 701 (1998) (physical precedent only).
[6] 240 Ga.App. 783, 525 S.E.2d 166 (1999).
[7] 223 Ga.App. 781, 782(2), 479 S.E.2d 123 (1996).
[8] State v. Gibbons, 248 Ga.App. 859, 860(1), 547 S.E.2d 679 (2001).
[9] See, e.g., State v. Sims, 248 Ga.App. 277, 278, 546 S.E.2d 47 (2001). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1302003/ | 263 Ga. 835 (1994)
439 S.E.2d 645
JONES
v.
THE STATE.
S93A1473.
Supreme Court of Georgia.
Decided January 31, 1994.
Reconsideration Denied February 25, 1994.
Henry G. Smith, Jr., for appellant.
Edward D. Lukemire, District Attorney, Claire C. Chapman, Assistant District Attorney, Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Rachelle L. Strausner, Staff Attorney, for appellee.
CLARKE, Chief Justice.
John William Jones was convicted of felony murder, cruelty to children, and aggravated battery in the death of his son, Jonathan *836 Jones, and was sentenced to life imprisonment.[1] He appeals and we affirm.
On November 2, 1988, John William Jones brought his three-month-old son into the Perry Hospital emergency room. Jones told the nurse that he had fed the baby some milk and then dropped the baby on the floor. The baby was not breathing and his skin had a bluish color. Dr. Larry Stewart, the child's pediatrician administered CPR and other emergency measures. He noted that there were several bruises on the child's buttocks, thighs, and back. There was also a relatively fresh bruise over the infant's left eye. These bruises were, according to Dr. Stewart, consistent with being beaten with a hand, belt, or cord of some kind. After stabilizing the child, Dr. Stewart examined the baby's eyes and noted multiple retinal hemorrhages. Another nurse on duty reported the case to the Department of Family & Children Services because she felt that the baby's injuries were inconsistent with appellant's explanation. Later that day, in an interview with a Child Protective Services investigator and a sergeant from the sheriff's department, appellant said that when he dropped the baby, he noticed that his son was not breathing. He then ran to his father's house, and his father took them to the hospital.
Doctors treated the child at the hospital before transporting him to the Medical Center of Central Georgia in Macon for specialized treatment. Dr. J. Gregory Jones, Chief of Ophthalmology at Mercer Medical School, examined the child and found massive hemorrhaging inside both of the victim's eyes. He noted such profound retinal detachment that he believed the child's injuries resulted from a tremendous amount of force consistent with "shaken baby syndrome."[2] Dr. Jones testified at trial that the degree of force necessary to cause such hemorrhaging would have to be "severe or violent." Dr. Stewart testified that before this incident, the baby was healthy with no signs of any underlying serious medical conditions. He also testified that the child had healthy eyes before the injuries on November 2, 1988.
Dr. Lowell Clark testified that the injuries suffered by the infant *837 were consistent with child abuse, such as shaken baby syndrome or being thrown against a wall. He further testified that these injuries could be caused if the child were dropped; however, the fall would have to be from the third or fourth floor of a building.
The child remained at the hospital for seven weeks before returning home in a vegetative state. Thirty-five months later, on September 29, 1991, Jonathan Matthew Jones died. Upon the child's death, Dr. James Whitaker examined the body. He testified that the child's brain was about one-third to one-quarter the size of the brain of a normal person of that age. The child died as a result of cranial cerebral trauma and its complications.
Appellant testified at trial that he dropped the child on the floor. When he noticed that the infant was not breathing, he grabbed the child and shook him several times, hitting him on the back, trying to get the child to breathe. He then took the child to the hospital. In his testimony, Jones said that he did not know that he could hurt a baby by shaking it.
1. Considering the evidence in the light most favorable to the jury's verdict, we conclude that a rational trier of fact could have found Jones guilty of these crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. Appellant alleges that his trial counsel's performance was so ineffective as to deny his constitutional right to an attorney. Appellant correctly states the standard for ineffective assistance claims. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U. S. 668, 686 (104 SC 2052, 80 LE2d 674) (1984). First, appellant must prove that trial counsel's performance was deficient. Second, he must show that but for trial counsel's deficiencies, there is a reasonable probability that the results of the trial would have been different.
Appellant catalogs a long list of complaints of his trial counsel's conduct. Although he retained trial counsel three years before he was indicted, his attorney did not interview the prosecution's witnesses, filed no pretrial motions, and spent little time with appellant discussing the case. Furthermore, appellant argues, during the trial, his attorney made no objections to the prosecution's case, improperly cross-examined prosecution witnesses, failed to call expert witnesses for his client's case, and failed to file the appropriate requests for jury instructions. Some of these trial decisions amount to strategic decisions of trial counsel. Austin v. Carter, 248 Ga. 775 (285 SE2d 542) (1982) (holding that decisions on which witnesses to call and how to conduct cross-examinations are the exclusive province of trial counsel after consultation with his client); Johnson v. State, 171 Ga. App. 851 (321 *838 SE2d 402) (1984) (holding that a trial attorney is not incompetent simply because he failed to file pretrial motions, particularly where no necessity for or benefit from them is shown). Appellant also contends that his trial counsel was ineffective for failing to reserve objections to the jury charge. Failure to object to a court's charge, however, is not ineffective assistance where the appellant does not show how this prejudiced his case. Kight v. State, 181 Ga. App. 874 (354 SE2d 202) (1987).
Appellant further alleges that trial counsel was ineffective in failing to submit jury charges on the definition of "maliciously," an essential element in the crimes charged and on the mistake of fact defense. However, the term "maliciously," as used in the cruelty to children statute, under which the appellant was indicted, is of such obvious significance and common understanding that there is no need to define it in the jury charge. Morris v. State, 185 Ga. 67 (2) (194 SE 214) (1937); Gaddis v. State, 176 Ga. App. 526 (336 SE2d 587) (1985).[3] Appellant also argues on appeal that he did not know that shaking the infant would cause the type of injuries that eventually killed his son, and that this would give rise to a mistake of fact defense. The strategy of appellant at trial was to show that he did not intend to hurt the child when he shook him. The trial court charged the jury on accident or misfortune:
[N]o person shall be found guilty of any crime committed by misfortune or accident where there is no criminal scheme, undertaking or intention or crime [sic] negligence. An accident is an event which takes place without one's foresight or expectation, that which takes place or begins to exist without design.
If you find from the evidence in this case that the incident which is the subject matter of this case occurred as a result of misfortune or accident and not as a result of a criminal undertaking or criminal negligence then it would be your duty to acquit the defendant.
Under OCGA § 16-3-5, a person shall be found not guilty of a crime if the act was induced by a misapprehension of fact which, if true would have justified the act or omission. Appellant admits that he shook the baby; the issue for determination by the jury is whether he *839 did so maliciously, i.e., with malice. Malice implies "the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and wilful doing of an act with an awareness of a plain and strong likelihood that such harm may result." Gaddis, supra at 526. Mistake of fact is a defense to a crime to the extent that the ignorance of some fact negates the existence of the mental state required to establish a material element of the crime. LaFave & Scott, Criminal Law, Vol. 1, p. 575, § 5.1. Mistake of fact would not negate the mental state required in cruelty to children, i.e., wanton and wilful doing of an act with an awareness of plain and strong likelihood that cruel or excessive physical or mental pain would result from the defendant's actions. A charge on accident or misfortune was an appropriate charge, not mistake of fact. Therefore, appellant's counsel was not ineffective for his failure to request a mistake of fact charge.[4]
The prosecution called several medical experts to testify about the violence of the shaking that caused the injuries to the infant. Appellant's defense was that he did not intend to harm the child. Therefore, much of the testimony and cross-examination now expected by Jones would have been fruitless. Given the evidence against him, appellant has not shown how he would have obtained a different result if trial counsel had acted differently.
3. Appellant also argues that the trial court erred in failing to give a limiting instruction on the purpose for which evidence offered by the state's witnesses on the two- to three-day-old bruises on the victim could be considered. Appellant contends on appeal that this evidence improperly impugned his character and that it amounted to evidence of prior misconduct.
None of the witnesses of the state indicated that appellant caused the bruises on the victim's buttocks and legs. In fact, the only evidence in the record, as appellant argues, is that the mother disciplined the child. Because appellant's defense was that he beat and shook the child to revive it, evidence that the bruises were old was relevant. Where evidence is otherwise relevant, it does not become inadmissible simply because it incidentally puts a defendant's character or reputation into evidence. Earnest v. State, 262 Ga. 494, 495 (422 SE2d 188) (1992).
4. During closing arguments, the prosecutor argued that because of the crying, the defendant "freaked out," "lost it," "went into a rage," and shook the child. Appellant argues that this raised the issue of voluntary manslaughter and that the trial court erred in failing to *840 give an instruction on the lesser included offense. Trial counsel made no written request for a charge on voluntary manslaughter. The prosecutor's statements to the jury do not constitute evidence of passion to justify a charge on voluntary manslaughter.
5. In his final enumeration of error, appellant contends that the trial court erred in giving a sequential charge, eliminating from full consideration the option of involuntary manslaughter as prohibited under Edge v. State, 261 Ga. 865 (414 SE2d 463) (1992). The trial court did not give a sequential charge. After setting forth the elements of felony murder, the trial judge instructed the jury:
Now in your consideration of the indictment, that is, the charge of felony murder, you may also consider the lesser included offense of involuntary manslaughter in the commission of an unlawful act....
This charge does not require the jury to rule out the felony murder before considering involuntary manslaughter. Furthermore, the Edge problem exists in a case where the jury charge prevents a jury from considering the issue of sufficient provocation that would reduce the homicide to voluntary manslaughter. The jury in this case had to decide whether the appellant killed a person, without any intention to do so, while in the commission of a misdemeanor. The trial judge committed no error in charging the jury on felony murder and involuntary manslaughter.
Judgment affirmed. All the Justices concur, except Sears-Collins, J., who concurs in the judgment only.
NOTES
[1] The crime was committed on November 2, 1988, and the victim died on September 29, 1991. Jones was indicted on January 21, 1992 in Houston County. The trial began on August 24, 1992, and the jury convicted Jones on August 26, 1992. On October 6, 1992, the trial court sentenced Jones to life imprisonment. Jones filed a motion for new trial on September 18, 1992, and filed the final amendment to his motion for new trial on April 7, 1993. The trial court denied the motion on May 19, 1993. The case was docketed in this court on July 6, 1993, and orally argued on September 21, 1993.
[2] Dr. Stewart testified that shaken baby syndrome was first described in pediatric literature about 1974. It involves shearing of blood vessels in the brain resulting from the acceleration and deceleration of an infant's head as it is shaken by the shoulders and arms. The head snaps back and forth, tearing small venules in the brain and retinal field of the eyes. Dr. Stewart also testified that he had never seen a situation in which an attempt to shake the breath back into a child resulted in injuries seen with shaken baby syndrome.
[3] Under his third enumeration of error, appellant argues that the trial court erred in failing to give an instruction to the jury defining the term "maliciously" as used in OCGA § 16-5-70, the cruelty to children statute and OCGA § 16-5-24, aggravated battery. We find this claim to be without merit as explained above.
[4] Under a separate enumeration of error, appellant contends that the trial court erred in failing to give a jury charge on the affirmative defense of mistake of fact. For the above reasons, we affirm the trial court's decision to charge the jury on accident or misfortune. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1554650/ | 36 So.3d 92 (2010)
BAEZ
v.
STATE.
No. 2D09-5120.
District Court of Appeal of Florida, Second District.
March 24, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1554675/ | 36 So.3d 185 (2010)
Charmarkco Shawn EVANS, Appellant,
v.
STATE of Florida, Appellee.
No. 4D08-5140.
District Court of Appeal of Florida, Fourth District.
June 9, 2010.
Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
STEVENSON, J.
Charmarkco Evans and his brother, Sharmarkco, were jointly tried for aggravated assault and false imprisonment with a firearm. In this appeal, Charmarkco Evans insists a prospective juror's comments during voir dire compelled the granting of his motion for mistrial. We find merit in Evans' argument, reverse the conviction, and remand for a new trial.
During jury selection, in response to questions regarding whether anyone was familiar with the case or the parties, one of the prospective jurors indicated he worked at the county jail and knew the defendants "from work." Later, this same juror indicated that he was a detention deputy at the jail. Finally, when the prosecutor *186 began to question this juror as to whether he could be fair given his job as a jail detention deputy, the prospective juror responded that he had been in contact with the Evans brothers "[q]uite a bit already." This prompted an objection and a motion for mistrial, which was denied. The objection and motion were renewed prior to the swearing of the jury. The trial judge persisted in her ruling, remarking that the juror had indicated only that he worked at the jail and knew the defendants from jail and since everyone knows that a person goes to jail upon arrest, there was no prejudice.
"Defendants have a constitutional right to a trial by an impartial jury." Holt v. State, 987 So.2d 237, 239 (Fla. 1st DCA 2008). This right is violated when jurors are inadvertently informed that the defendant has other, pending charges. See, e.g., Holt, 987 So.2d at 239-40 (reversible error where defendant was to be tried on a single count of armed robbery, but judge made comment indicating defendant was charged with two counts); Jackson v. State, 729 So.2d 947, 950-51 (Fla. 1st DCA 1998) (reversible error where defendant was to be tried on single count and, in presence of jury, judge asked prosecutor whether he was proceeding on all four counts). Such right is also violated where the jury is inadvertently informed that the defendant, whose guilt they are about to decide, is a convicted felon. In Richardson v. State, 666 So.2d 223 (Fla. 2d DCA 1995), juries were simultaneously selected for three criminal trials. During jury selection, a prospective juror indicated several times that she worked as a corrections officer at Polk Correctional Institution. When jury selection began for Richardson's trial, there was an exchange between this juror and the prosecutor. "The exchange between the prosecutor and this prospective member of the jury suggested that she knew Richardson through her employment, implying that he was a convicted felon who previously served time." Id. at 224. The Second District held that it was error for the trial court to deny defense counsel's motion to strike the entire venire.
Similarly, here, as in Richardson, the other jurors could have understood the deputy's comment that he had been in contact with the Evans brothers "[q]uite a bit already" as an indication that, through his job, the deputy had had multiple occasions, over time, to come into contact with the defendant and, thus, as a suggestion that the defendant had prior criminal charges and/or convictions. Accordingly, we reverse the defendant's judgment of conviction and remand for a new trial.
Reversed and Remanded.
GROSS, C.J., and CIKLIN, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3036647/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-2579
___________
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the District
v. * of Nebraska.
*
Jeremy C. Conn, * [UNPUBLISHED]
*
Appellant. *
___________
Submitted: January 10, 2005
Filed: January 19, 2005
___________
Before WOLLMAN, FAGG, and BYE, Circuit Judges.
___________
PER CURIAM.
Jeremy C. Conn pleaded guilty to drug charges and was sentenced to eighty-
four months in prison. In this appeal, Conn’s attorney has moved to withdraw and
filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing the district
court should have departed downward from the otherwise applicable Sentencing
Guidelines range because Conn’s criminal history score overrepresented his criminal
propensities. See U.S.S.G. § 4A1.3(b). This argument fails because the district
court’s discretionary refusal to depart downward is not reviewable on appeal. United
States v. Parks, 364 F.3d 902, 906 (8th Cir. 2004). Conn has filed a pro se
supplemental brief and his pro se arguments also fail. Having reviewed the Anders
brief, Conn’s supplemental brief, and the record independently under Penson v. Ohio,
488 U.S. 75 (1988), we find no nonfrivolous issues and thus affirm. We grant
counsel’s motion to withdraw, and deny Conn’s pro se motion for copies of discovery
and grand jury transcripts.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1559306/ | 20 So.3d 155 (2009)
Patricia M. DULANEY
v.
Larry D. DULANEY.
2080052.
Court of Civil Appeals of Alabama.
April 10, 2009.
*156 E.B. Harrison Willis of Cloud & Tidwell, LLC, Birmingham, for appellant.
Jake B. Mathews, Jr., Anniston, for appellee.
THOMAS, Judge.
Patricia M. Dulaney ("the mother") appeals from the Calhoun Circuit Court's judgment denying her motion to revive a previous judgment. Because that mother's notice of appeal was untimely filed, we dismiss the appeal for lack of jurisdiction.
Background
On August 26, 1994, the Calhoun Circuit Court ("the trial court") entered a judgment for unpaid child support in favor of the mother and against Larry D. Dulaney ("the father"). On February 10, 2008, the mother moved the trial court to revive the 1994 judgment. See Ala.Code 1975, §§ 6-9-190 and 6-9-192. On February 20, the trial court entered a judgment denying her motion. On March 3, the mother filed a Rule 59(e), Ala. R. Civ. P, postjudgment motion to alter, amend, or vacate the trial court's judgment. The trial court conducted a hearing, and, on May 5, it denied the mother's postjudgment motion. However, the trial court did not enter its order denying the postjudgment motion in the State Judicial Information System ("the SJIS"), and it did not notify the mother of the entry of the order. The mother's attorney contacted the trial-court clerk's office on several occasions and was told each time that the matter was still under advisement. On August 22, the mother discovered the existence of the May 5 order. On August 25, the mother filed a Rule 60(b), Ala. R. Civ. P., motion for relief from the judgment and, alternatively, a motion to reconsider the denial of her Rule 59(e) postjudgment motion. On September 2, the trial court purported to grant the mother's motion to reconsider, but it denied her Rule 60(b) motion for relief from the judgment. On October 14, the mother appealed. The father filed a motion to dismiss the mother's appeal as untimely.
Analysis
The trial court purported to deny the mother's postjudgment motion on May 5, 2008. However, that order was not entered into the SJIS. See Rule 58(c), Ala. R. Civ. P. Therefore, that motion was denied by operation of law on June 3. See Rule 59.1, Ala. R. Civ. P.; see also Martin v. Martin, 998 So.2d 1081 (Ala.Civ.App. 2008).[1] The mother had 42 days from that datei.e., until July 15to appeal. However, the mother did not file her appeal *157 until October 14.[2] Therefore, her appeal is untimely and we grant the father's motion to dismiss.
APPEAL DISMISSED.
THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur.
NOTES
[1] Rule 59.1 provides that a postjudgment motion that is not ruled on by the court within 90 days is deemed denied at the expiration of the 90-day period. The 90th day following the mother's filing of her postjudgment motion on March 3, 2008, was Sunday, June 1, 2008. Monday, June 2, 2008, was a State holidayJefferson Davis's Birthday. Therefore, the mother's postjudgment motion was deemed denied on Tuesday, June 3, 2008. See First Alabama Bank v. McGowan, 758 So.2d 1116 (Ala.Civ.App.2000), and Richburg v. Cromwell, 428 So.2d 621 (Ala. 1983).
[2] The filing of the mother's Rule 60(b) motion on August 25 did not affect the timeliness of her appeal. "[T]he lack of notice from the clerk's office is not a ground for relief under Rule 60(b), Ala. R. Civ. P.; Rule 77(d), Ala. R. Civ. P., exclusively governs actions in which a litigant claims that the clerk's office failed to notify him of the trial court's entry of judgment. Lindstrom v. Jones, 603 So.2d 960 (Ala. 1992); Corretti v. Pete Wilson Roofing Co., 507 So.2d 408 (Ala. 1986)." Ireland v. Piggly Wiggly Alabama Distrib. Co., 719 So.2d 844, 845 (Ala.Civ.App.1998). Moreover, "the filing of a Rule 60 motion does not toll the time for taking an appeal. See Alabama Farm Bureau Mut. Cas. Ins. Co. v. Boswell, 430 So.2d 426, 428 (Ala. 1983) (`[A] motion made under Rule 60, [Ala. R. Civ. P.], is an attack on the judgment and does not affect the finality of the judgment or toll the time for appeal.')." Rhodes v. Fulmer, 12 So.3d 1239, 1244 (Ala.Civ.App.2009). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1301983/ | 768 N.W.2d 62 (2009)
2009 WI App 56
STATE EX REL. GEHL
v.
TOWN BD. OF TOWN OF PERRY.[1]
No. 2007AP1067.
Court of Appeals of Wisconsin.
March 12, 2009.
Unpublished opinion. Affirmed.
NOTES
[1] Petition for Review Filed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1559301/ | 20 So. 3d 1137 (2009)
STATE of Louisiana, Appellee
v.
Roderick L. MOORE, Appellant.
No. 44,429-KA.
Court of Appeal of Louisiana, Second Circuit.
August 26, 2009.
*1139 Rick Lane Candler, for Appellant.
Charles R. Scott, District Attorney, Tommy J. Johnson, Damon Kervin, Jason Brown, Karelia Stewart, Assistant District Attorneys, for Appellee.
Before GASKINS, CARAWAY and MOORE, JJ.
CARAWAY, J.
Roderick Moore was convicted of one count of distribution of cocaine and one count of distribution of hydrocodone. He was sentenced to concurrent sentences of 15 years at hard labor for the cocaine conviction, with 5 years of the sentence imposed without benefit of parole, probation, or suspension of sentence, and 5 years at hard labor for the hydrocodone conviction. Moore now appeals. We affirm the convictions on both counts. Moore's sentence on the hydrocodone distribution conviction is affirmed and his sentence for the cocaine distribution conviction is affirmed as amended.
Facts
Roderick Moore, a 17-year veteran Shreveport police officer, was arrested for distributing cocaine and hydrocodone to a local club dancer on November 1, 2007. The Shreveport Police Department had received information from a number of different confidential sources that Moore was engaging in illegal drug activity throughout the City of Shreveport. On October 29, 2007, Mary Ann Johnson ("Johnson"), a dancer at a local club, informed Detective Jack Miller ("Miller"), of the Shreveport Police Department vice unit, that Moore had given her Xanax the day before which she claimed to have discarded. With the supervision of law enforcement, Johnson participated in a recorded telephone conversation with Moore who implicated himself in illegal drug activity both in the conversation and in subsequent messages left for Johnson on her cell phone. Police opened an investigation and ultimately decided to set up a controlled buy/bust operation between Moore and Johnson at *1140 her place of employment, Larry Flynt's Hustler Club-Shreveport ("Deja Vu"), in Shreveport. Through video surveillance, police observed a hand-to-hand transaction take place between Johnson and Moore. Johnson claimed that Moore gave her illegal drugs and she transferred the substances, later determined by laboratory testing to be cocaine and hydrocodone, to police. Moore was arrested and charged with two counts of distribution of illegal drugs. He admitted that he talked to Johnson about drugs, but denied distributing anything to her. A jury convicted Moore of the charged offenses. The court denied Moore's motion for a post verdict judgment of acquittal and he waived sentencing delays. After sentencing, this appeal followed.
Discussion
I.
Three of defendant's assignments of error relate to the sufficiency of the evidence for conviction.[1] Moore argues that the circumstantial evidence was not sufficient to convict him because "no one could see what was allegedly passed to the informant," by the defendant inside the club. In an environment ridden with drug activity which had not been comprehensively searched, Johnson was not kept under constant surveillance. Thus, Moore argues that the drugs Johnson produced to the officers cannot be linked to him. Moore also attacks Johnson's credibility concerning her testimony of a previous drug incident, her inconsistent description of the drugs she allegedly received from Moore, her inconsistent statements about an argument with another employee, and her attempts to gain notoriety for personal ambitions with the Shreveport Police Department. Moore also seeks to discredit the testimony of Miller on the basis of his inconsistent description of incidents before, during and after the transaction.
Cocaine is classified as a Schedule II CDS, and it is unlawful for any person to knowingly or intentionally distribute or dispense a Schedule II CDS. See, LSA-R.S. 40:964(A)(4) and 40:967(A)(1). Hydrocodone is defined as a Schedule III CDS. La. R.S. 40:964(D)(1)(d). To present sufficient evidence of distribution of a CDS, the state must prove the following elements: (1) delivery or physical transfer of the CDS to its intended recipient; (2) guilty knowledge of the CDS at the time of the transfer; and (3) the exact identity of the CDS. State v. Braziel, 42,668 (La.App. 2 Cir. 10/24/07), 968 So. 2d 853; State v. Kelley, 36,602 (La.App. 2d Cir.1/29/03), 836 So. 2d 1243; State v. Manning, 30,809 (La. App. 2d Cir.6/24/98), 715 So. 2d 668.
The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. On appeal, a reviewing court must view the evidence in the light most favorable to the state and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the *1141 evidence. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So. 2d 517; State v. Dotie, 43,819 (La.App. 2d Cir.1/14/09), 1 So. 3d 833. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So. 2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La. App. 2d Cir.2/25/09), 3 So. 3d 685; State v. Hill, 42,025 (La.App. 2d Cir.5/9/07), 956 So. 2d 758, writ denied, 07-1209 (La.12/14/07), 970 So. 2d 529.
The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So. 2d 471 (La.1983); State v. Speed, 43,786 (La.App. 2d Cir.1/14/09), 2 So. 3d 582.
Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Speed, supra; State v. Robbins, 43,129 (La.App. 2d Cir.3/19/08), 979 So. 2d 630. For a case resting essentially upon circumstantial evidence, that evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438.
Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra; State v. Allen, 36,180 (La.App. 2d Cir.9/18/02), 828 So. 2d 622, writs denied, 02-2595 (La.3/28/03), 840 So. 2d 566, 02-2997 (La.6/27/03), 847 So. 2d 1255, cert. denied, 540 U.S. 1185, 124 S. Ct. 1404, 158 L. Ed. 2d 90 (2004).
In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La. App. 2d Cir.2/13/08), 975 So. 2d 753; State v. Burd, 40,480 (La.App. 2d Cir.1/27/06), 921 So. 2d 219, writ denied, 06-1083 (La.11/9/06), 941 So. 2d 35. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Robinson, 384 So. 2d 332 (La.1980); State v. Ponsell, 33,543 (La.App. 2d Cir.8/23/00), 766 So. 2d 678, writ denied, 00-2726 (La.10/12/01), 799 So. 2d 490.
The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So. 2d 1022, cert. denied, 531 U.S. 840, 121 S. Ct. 104, 148 L. Ed. 2d 62 (2000).
A motion for post verdict judgment of acquittal shall be granted only if the court *1142 finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilt. La. C.Cr.P. art. 821. This is a question of legal sufficiency of the evidence. State v. Combs, 600 So. 2d 751 (La.App. 2d Cir. 1992), writ denied, 604 So. 2d 973 (La. 1992).
The testimony and evidence presented at Moore's trial included the testimony of Miller and Agent Henry Whitehorn, Jr. ("Whitehorn"), of the Caddo-Shreveport Narcotics Unit. These officers worked with Johnson in the investigation of Moore. Miller explained that in the course of his work, he came into contact with Johnson.[2] At the time of Moore's arrest Johnson worked at Deja Vu, a nightclub in Shreveport. Johnson called Miller on Sunday, October 29, 2007, and told him that she had disposed of Xanax given to her by a law enforcement officer on October 28, 2007, because she did not use drugs. Ultimately Miller contacted Whitehorn. Whitehorn testified that Moore had been suspected of drug activity prior to this incident.
Upon determining that Johnson was credible as a confidential informant,[3] Miller and Whitehorn had Johnson place a phone call to Moore which was recorded. During the phone call, Moore talked about taking Xanax and mentioned that he knew how long it would take in order to pass a drug test after taking Xanax. Moore also told Johnson, "I got some powder."
Both officers testified that Moore also left voice messages on Johnson's cell phone voice mail. Copies of these messages were entered into evidence. Miller recalled that in one of the messages, Moore stated, "Call me. Maybe you can ride the bike." Moore also used the phrase "ride the horse" and referred to "the white horse." The messages entered into evidence corroborate that testimony. At trial, Miller and Whitehorn explained that "powder" is a street name for cocaine; "white horse" most often refers to powder cocaine;[4] and "handlebars" is a "street name" for Xanax. Further, when speaking about Xanax in these terms, the officers testified that individuals may say things such as "I've got some handlebars you can ride" or "you can come ride the bike."
After these telephone recordings, officers opened an investigation and ultimately decided to set up a controlled buy/bust operation with the defendant at Deja Vu. Miller and Whitehorn testified that they were present when Johnson placed a call to Moore on November 1, 2007, telling him that she wanted to meet to possibly obtain narcotics. Moore agreed. The recorded conversation was submitted into evidence and substantiated the planned meeting.
Whitehorn testified that two agents were stationed near Moore's residence in Princeton, Louisiana.[5] The officers observed *1143 Moore leaving the residence. Whitehorn testified that he and two other agents were stationed downtown on the parking garage roof across from the club while two other agents were placed inside the club. Whitehorn observed Moore enter Deja Vu.
Miller testified that he searched Johnson's person, bag, and vehicle immediately prior to her entering the club before the transaction. Johnson went directly into the dressing room to change into work clothes. Her locker in the dressing room had not been previously searched by the officers.[6] Miller testified that he had made arrangements with the club owner to utilize video monitors in the dressing room. Miller testified that he and Agent Allan Alkire observed Johnson while she changed clothes. Miller also testified that Johnson was not equipped with audio equipment or a wire because in a club setting the music and background noise are so loud that attempts to record conversations would be unsuccessful.
Miller testified that he and Agent Alkire were in the surveillance room of Deja Vu when the transaction between Johnson and Moore took place. Miller estimated that there were approximately 80 cameras in the club at the time of the interaction between Johnson and the defendant. Two recordings were made of the interaction; one on the club's monitor, and one made by Miller, who was recording the club's monitor with a hand-held camera.
Miller testified that he saw Moore enter the business and take a seat at the bar. After another employee of the bar approached and left Moore, Johnson then made contact with the defendant, sitting next to him at the bar. Johnson was in her work clothing, and was carrying a cell phone and a towel.[7]
Miller testified that after Johnson and Moore had talked for a few minutes, Moore stood up and put his right hand into his pocket. Moore removed his hand from his pocket with his fist closed. Moore then put his closed fist on top of Johnson's opened hand and opened his hand.[8] Miller testified that Johnson closed her hand, and the defendant took his open hand away. Miller did not see what was in Johnson's hand, but he testified that she then placed her hand under her leg while remaining seated at the bar. The video of the interaction corroborated Miller's testimony. The video does not show what, if anything, was passed from Moore to Johnson's hand.
Miller testified that after the transaction, Johnson returned to the dressing room and entered the bathroom which was unmonitored. There she called Miller on her cell phone. Miller testified that he *1144 instructed her to go into the dressing room where there were video monitors and to await further instructions from him. Ultimately, Johnson gave two small baggies to Miller in the security room.
After the incident, Miller made two audio recordings of Johnson's description of the transaction which were admitted into evidence. Miller testified that in the audio recordings, Johnson told him that Moore had given her a Lortab pill and powdered cocaine mixed with Lortab. The audio recordings confirm this testimony. Moreover, in the recordings, Johnson stated that Moore told her he also had drugs at his home.
The officers instructed Johnson to go back and sit next to Moore while they determined what to do next. Miller testified that the officers directed the owner of the club to remove Johnson out of the area. As soon as Johnson was removed from the area, Miller and Agent Alkire arrested Moore. Miller testified that no drugs were found on Moore's person or in his vehicle.
Johnson also testified at trial. She testified that on October 28, 2007, Moore had given her two Xanax bars which she flushed down the toilet. She then met with Miller and Whitehorn. She testified concerning the phone recordings of Moore. In the recorded phone conversation, Moore referred to "powder" and Johnson told Moore to bring her powder. Afterwards the two met at Deja Vu where he transferred drugs to her. Johnson testified that Moore gave her powder cocaine mixed with Lortab, as well as a Lortab pill in small bags.[9] Johnson testified that after Moore gave her the drugs, she placed her closed hand under her leg. She testified that after leaving the bar she went into the dressing room and called Miller. Johnson eventually met with Miller and turned the drugs over to him.[10] Johnson denied drug use although she admitted to seeing both Xanax and Lortab at Deja Vu. Johnson confirmed that Miller did not search her dressing room locker.
Moore made a statement to one of the arresting officers, Officer Carl Townley,[11] that he had spoken with Johnson, and had mentioned drugs to her, but said that he "would do anything ... to get in their pants." Moore denied distributing the drugs.
After Moore's arrest, a search warrant was procured to search his home in Bossier Parish. Whitehorn and Sergeant Clifton Lindsay, of the Shreveport Police Department, were present when the Bossier authorities executed the warrant. Both officers testified that at the time of the search, Moore's daughter, Kammi Moore, was present at the residence. The officers confirmed that a briefcase, secured with a combination lock, was found in Moore's bedroom. Moore's badge number unlocked the briefcase which contained what appeared to the officers to be marijuana, cocaine, Lortab, Xanax, and various other prescription medications. Whitehorn testified that rolling papers and baggies were also in the briefcase.[12] Laboratory testing later revealed that the substances *1145 in the briefcase contained the following controlled substances: oxycodone; marijuana; hydrocodone (Lortab); methadone; lorazepam; alprazolam (Xanax); and cocaine.
Moore's daughter, Kammi Moore, testified at trial. Ms. Moore was interviewed by officers one day after the search of Moore's residence. At trial, a portion of the taped video of the officers' interview of Ms. Moore was reviewed with her and introduced into evidence. In the statement, Ms. Moore admitted that she had seen her father with large amounts of cocaine and money and that the drugs found in the briefcase belonged to him. She also stated her knowledge of the fact that her father gave drugs to club dancers in exchange for sexual relations. Ms. Moore also admitted that she witnessed her father packaging drugs in small baggies at his home. On cross-examination, Ms. Moore testified that she felt pressured by the officers to make these statements. She believed that if she did not cooperate, she would be arrested and would lose her daughter.
Marcelle Liversage was the sole witness called on Moore's behalf. Liversage testified that she was employed at Deja Vu until June 2007 as a "house mom" in charge of the dressing room. Liversage also stated that one of her duties was to make sure that none of the dancers was using drugs or drinking alcohol. Liversage estimated that "about ninety percent of the girls were using drugs and selling them." She testified that the dancers' lockers, which were in the dressing room, had key or combination locks. The lockers were only accessible by the dancers unless management requested that the lockers be opened. Liversage sometimes saw the dancers open their lockers, exchange cash and engage in hand-to-hand transactions.
Liversage testified that Johnson had once asked her for pain medicine and that she had offered over-the-counter pain products. Liversage testified that she saw Johnson speak with another dancer, who handed Johnson a "long, white pill" from a brown prescription bottle. Liversage concluded that the pill had been a Lortab, because "that's what all the girls used." Liversage explained that the use of Lortab was very common at the club.
Contrary to Moore's contentions that the state's case rests primarily on circumstantial evidence of the alleged drug transaction inside Deja Vu, direct evidence of the transaction was reported in Johnson's testimony and demonstrated by her production of the cocaine and Lortab to the officers. There is also a large body of circumstantial evidence demonstrating the absence of internal contradiction and irreconcilable conflict between Johnson's description of the drug transaction and what can be inferred by such circumstantial evidence. Moore's telephone conversations with Johnson in advance of their encounter suggested that drugs would be produced by Moore. The surveillance of Johnson from the time of her entry into the club until her delivery of the drugs to Miller inside the club does not contradict her account of the transaction. The video of the transaction itself suggests that something was delivered hand-to-hand from Moore to Johnson. Finally, the evidence concerning Moore's leaving his home in which cocaine, hydrocodone and other drugs were found circumstantially demonstrates Moore's ability to complete the transaction that evening at the club as Johnson described. The testimony of Johnson, aided by this large body of circumstantial evidence confirming the transaction and removing any questions regarding her credibility, was clearly believed by the jury as direct evidence of the drug *1146 transaction and is sufficient beyond a reasonable doubt to prove the distribution of the two drugs and the convictions.
Likewise, Moore's argument that drugs of an "unknown origin" were delivered by Johnson to the officers in the club has no merit. He bases this argument on the surveillance of Johnson and her ability to possibly obtain those drugs by other means inside the club. The evidence concerning the officers' observations of Johnson shows that the officers first searched Johnson and her bag before she entered the club. After she entered the establishment, two officers continually monitored her from the time she changed clothes until she approached Moore. The officers observed no other individual in the dressing room at that time. After the transaction, the officers again monitored Johnson as she entered the dressing room. From the dressing area, the officers lost sight of Johnson upon her entry into the bathroom for a "few seconds" while she phoned Miller. She was instructed by Miller to immediately return to the dressing room so that the officers could monitor her. Johnson was monitored by the officers until she was instructed to bring the drugs to the security room where the officers were located. While this review indicates certain brief opportunities for Johnson to have obtained the drugs from her locker or the bathroom, the jury could weigh those instances along with the entirety of the surveillance evidence. The great weight of the evidence reveals the hand-to-hand exchange between Johnson and Moore as the time when she obtained the drugs. Johnson knew she was under surveillance in the club. The video evidence of the exchange between Johnson and Moore along with all the other circumstantial evidence described above could be weighed by the jury and overwhelmingly supports the jury's acceptance of Johnson's testimony of her receipt of the drugs from Moore.
Finally, the instances of certain inconsistencies in the details surrounding the crime by both Johnson and Miller were minor in nature and did not serve to discredit their descriptions of the overall criminal transaction by Moore. Johnson's attempts to obtain employment with the police department were matters concerning her credibility which were before the jury for consideration. The appellate court may not impinge on the discretion of the jury regarding these issues of credibility of the witnesses.
The defendant's assignments of error pertaining to the sufficiency of the evidence have no merit.
II.
Moore argues that the introduction of the evidence of the search of his home and the charges subsequently brought in Bossier Parish represent impermissible "other crimes" evidence which prejudiced his case and should have been excluded from evidence. After a pretrial hearing raising this issue, the trial court ruled the evidence admissible. Before the court, Moore argued that the "other crimes" evidence should be inadmissible due to the extreme prejudicial nature of the evidence and the risk that Moore would be convicted of the present offense based upon that evidence.
Generally speaking, evidence pertaining to the defendant's commission of crimes, wrongs or acts, other than the one with which he is currently charged, is inadmissible, when the only purpose of such evidence is to prove the defendant's character and thus his subsequent disposition to break the law. La. C.E. art. 404; State v. Harrison, 604 So. 2d 583 (La.9/2/1992); State v. Humphrey, 412 So. 2d 507 (La.1981). The exceptions to *1147 this general rule are listed in La. C.E. art. 404(B)(1), which provides as follows:
[E]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
The last phrase of the concluding sentence of Article 404(B)(1), as emphasized above, delineates between those "other crimes" which are not an integral part of the act or transaction that is the subject of the present proceeding and those that are an integral part. Those criminal acts that constitute an integral part of the transaction which is the subject of prosecution are referred to as res gestae events. State v. Taylor, 37,356 (La.App.2d Cir.9/26/03), 855 So. 2d 958, writ denied, 03-3141 (La.3/19/04), 869 So. 2d 848.
Res gestae events constituting other crimes evidence are deemed admissible because they are so nearly connected to the charged offense that the state could not accurately present its case without reference to them. A close proximity in time and location is required between the charged offense and the other crimes evidence to insure that the purpose served by admission of other crimes evidence is not to depict defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place. Id. at 961.
From our review of the circumstances surrounding the search of Moore's home in Bossier, we consider the evidence of Moore's drug activities in his home as conduct that constitutes an integral part of the transaction which occurred at Deja Vu and therefore admissible under our res gestae rule. Significantly, Moore did not seek to suppress the evidence obtained by the execution of the search warrant of his home. The justification for the issuance of such a warrant was reviewed by our supreme court in State v. Profit, 00-1174 (La.1/29/01), 778 So. 2d 1127, 1130-1131, as follows:
The task of a court reviewing that judgment is simply to "ensure that the magistrate had `a substantial basis for ... conclud[ing]' that probable cause existed." [Illinois v.] Gates, 462 U.S. [213] at 239, 103 S.Ct. [2317] at 2332[, 76 L. Ed. 2d 527 (1983)] (quoting Jones v. United States, 362 U.S. 257, 271, 80 S. Ct. 725, 736, 4 L. Ed. 2d 697 (1960)). In the present case, the amount of marijuana seized after the chase, far more consistent with trafficking than with personal use only, together with a reasonable basis to believe that respondent had attempted to mislead the officers with regard to the location of his residence until he was corrected by his passenger and the information on his own driver's license, and respondent's previous involvement with marijuana reflected in his prior arrests and conviction, supported a reasonable, common sense inference made by the magistrate that the officers had a fair probability of finding additional amounts of the drug on the premises at 4601 St. Bernard Ave. See United States v. Reddrick, 90 F.3d 1276, 1281 (7th Cir.1996) (a magistrate may infer that "in the case of drug *1148 dealers evidence is likely to be found where dealers live ....") (internal quotation marks and citation omitted); United States v. Riedesel, 987 F.2d 1383, 1391 (8th Cir.1993) (lawful seizure of drugs from defendant's car provides probable cause to support issuance of a warrant to search his home); United States v. Robins, 978 F.2d 881, 892 (5th Cir.1992) (sufficient nexus existed between marijuana seized from vehicle and defendant's residence to establish probable cause for a warrant to search the premises because "[a] residence is a quite convenient, commonly-used place for planning continuing criminal activities like large-scale marijuana trafficking and money laundering."); United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.1986) (a magistrate is "entitled to draw reasonable inferences," including that drug dealers have drugs "where the dealers live," and when traffickers consist of ringleader and assistants a sufficient "probability exists that drugs will be at the assistants' residence as well as the ringleader's."); see also State v. Johnson, 256 Neb. 133, 589 N.W.2d 108 (1999) ("[A] common thread among these cases is that the affidavit provides factors establishing that the defendant was a drug dealer as opposed to someone in possession of drugs for personal use.").
The drug transaction began after Moore's suggestions over the phone to Johnson concerning drugs. He was placed under surveillance by the police upon leaving his home and driving to Deja Vu. The transaction occurred inside Deja Vu, was witnessed from the security room by officers, and confirmed by Johnson who delivered the drugs to the police. Upon his arrest, Moore denied distributing drugs to Johnson. The immediate search warrant obtained for the search of Moore's home was based upon this nexus of the events, and the evidence of drug distribution discovered in the home was relevant and admissible for proof of a continuous chain of events related to the charged crimes.
Defendant's argument that the evidence obtained from the search of his home was inadmissible "other crimes" evidence is without merit.
Error Patent:
For the conviction of distribution of a Schedule II CDS, cocaine, Moore received a sentence of 15 years of imprisonment at hard labor, 5 of which were ordered to be served without benefit of parole, probation, or suspension of sentence. The version of La. R.S. 40:967(B)(4)(b) in effect at the time of the crime on November 1, 2007, provided that only the first two years of the sentence be imposed without benefit of parole, probation or suspension of sentence.
Accordingly, we will amend the sentence to set aside that portion which provides for a period in excess of two years to be served without benefit of parole, probation or suspension of sentence. La.C.Cr.P. art. 882; State v. Malone, 31,726 (La.App. 2d Cir.1/20/99), 728 So. 2d 500. The minute entry for sentencing is hereby corrected to provide that the first two years of the sentence be served without benefit of parole probation or suspension of sentence.
Conclusion
For the foregoing reasons, Moore's conviction and sentence for Distribution of a Schedule III, hydrocodone is affirmed. His conviction for Distribution of a Schedule II, cocaine is affirmed. His sentence for this offense is amended to delete that portion of the sentence which provides for a period in excess of two years be served without benefits, and, as amended, is affirmed.
*1149 CONVICTIONS AND SENTENCE AFFIRMED; SENTENCE AFFIRMED AS AMENDED.
NOTES
[1] In addition to defendant's first assignment of error specifically regarding sufficiency, defendant's fourth assignment of error relates to his motion for post verdict judgment of acquittal, by which he argues that the lack of constant surveillance of Johnson while in the club leaves her later production of the drugs unlinked to the defendant and highly circumstantial. Defendant's second assignment of error likewise questions the relevance of the drugs produced by Johnson to the police after her encounter with defendant in the club. While defendant asserts that those drugs, which were subject to his pretrial motion to suppress, must be suppressed, the issue raised goes to the relevance of the drugs and their sufficiency concerning the issue of defendant's distribution of them to Johnson, instead of a fourth amendment violation.
[2] Johnson twice unsuccessfully applied to work with the Shreveport Police Department. Miller wrote a letter of recommendation for Johnson.
[3] Testimony established that although Johnson was not initially offered nor expected any compensation for her work for the police, after Moore's arrest, she was paid $2000 in cash by the Shreveport Police Department.
[4] Whitehorn testified that Moore kept horses behind his house but he did not recall whether any of those horses were white. Sergeant Clifton Lindsay testified that there were two horses behind the defendant's house, but that they were dark in color or "bay."
[5] Lieutenant Richard Childers, the supervising officer of Moore's investigation, testified that agents had been posted at Moore's residence to follow him from the residence to the club to determine whether Moore made any stops between the residence and the club. Sergeant Mark Davis was one of those officers and corroborated Childers' testimony that Moore made no stops between his home and the club.
[6] Davis, a sergeant with the Shreveport Police Department assigned to the DEA drug enforcement task force, testified that although a search of Johnson's locker would have been a better practice, the decision to do so is based upon the circumstances and possibility of jeopardizing the operation. In rebuttal testimony, Davis concluded that in this case, it would not have been feasible to search the locker without compromising the investigation. He also testified that in his opinion, standard operating procedure was followed in this case.
[7] Johnson initially testified that she did not remember whether she had carried a towel on this particular occasion, but that she usually did. After the state refreshed Johnson's memory by showing her the video of the transaction, Johnson confirmed that she had been carrying a towel.
[8] On cross-examination, Defective Miller admitted that he had at an earlier hearing erroneously testified that Moore used two hands to effect the transaction.
[9] Lortab is a trade name for a combination of acetaminophen and hydrocodone. See In re Alford, 07-1893 (La.2/15/08), 977 So. 2d 811, 837-838.
[10] The drugs given to Miller were introduced into evidence. An expert from the North Louisiana Crime Lab analyzed the drugs and testified that the drugs were cocaine and a pharmaceutical preparation containing hydrocodone.
[11] Officer Townley's testimony setting forth these facts was stipulated at trial.
[12] Supervising Officer Childers corroborated Whitehorn's and Lindsay's testimony regarding the search of Moore's residence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1302007/ | 439 S.E.2d 854 (1994)
SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Appellant,
v.
Kathleen THARP and Albert Tharp, Defendants.
Ex parte Janne B. OSBORNE, Attorney for Kathleen Tharp, and M. Elizabeth Rhoad, Guardian ad Litem for Kathleen Tharp, Respondents.
No. 23995.
Supreme Court of South Carolina.
Heard November 17, 1993.
Decided January 17, 1994.
Rehearing Denied February 16, 1994.
*855 Elizabeth K. Stricklin, of South Carolina Dept. of Social Services, Columbia, for appellant.
Janne B. Osborne, Orangeburg, for respondent Kathleen Tharp.
M. Elizabeth Rhoad, of Bamberg, Guardian ad Litem for respondent Kathleen Tharp.
CHANDLER, Justice:
The South Carolina Department of Social Services (DSS) was successful in terminating the parental rights of Kathleen Tharp (Mother) and Albert Tharp (Father).[1] Family Court ordered DSS to pay the fees of both the attorney and Guardian ad Litem (GAL) appointed to represent Mother. DSS appeals the assessment of fees.
We affirm in part, reverse in part and remand.
FACTS
Mother is a paranoid schizophrenic whose two children, ages 13 and 11, have been in DSS custody since 1984. When it became apparent that Mother would never be capable of adequately caring for the children, Family Court ordered that DSS institute termination of parental rights (TPR) proceedings. It ordered, further, that Janne Berry Osborne (Attorney) be appointed to represent Mother; M. Elizabeth Rhoad was appointed Mother's GAL.
*856 By order dated October 22, 1991, Family Court terminated parental rights of Mother and Father and, additionally, ordered that DSS pay Mother's attorney's fees and GAL fees. DSS' motion for reconsideration of the fee assessments was denied.
ISSUES
1. Was assessment of GAL fees against DSS proper?
2. Was assessment of attorney's fees against DSS proper?
3. Does appointment of counsel to represent, without compensation, an indigent parent in a TPR proceeding constitute a "taking"?[2]
DISCUSSION
I. GAL Fees
DSS asserts that assessment of GAL fees against it was improper. We disagree.
Exclusive jurisdiction of Family Court to hear and determine TPR cases is conferred by subsection (4) of S.C.Code Ann. § 20-7-420 (1992). Specifically, subsection (37) of § 20-7-420 vests Family Court with authority:
To appoint guardians ad litem and determine their compensation, fees, and costs and to assess as compensation, fees, and costs against the person represented by the guardian ad litem or against any other person or party involved in the action. (Emphasis supplied).
The foregoing language clearly vests Family Court with jurisdiction to assess GAL fees against any party involved. Here, DSS is such a party.
DSS's contention that assessment of GAL fees is limited to cases in which it was the losing party is without merit. We held to the contrary in Dunn v. Dunn, 298 S.C. 365, 380 S.E.2d 836 (1989). Accordingly, we find DSS liable for a reasonable GAL fee.
Here, Family Court ordered that DSS pay $1,702.50. On the present record, however, there is no evidence that this amount is reasonable and, accordingly, we remand for a hearing de novo and development of a full record.
II. Attorney's Fees
DSS asserts that assessment of an attorney's fee against it is prohibited by statute. We agree.
Attorney's fees are not recoverable unless authorized by contract or by statute. Hegler v. Gulf Ins. Co., 270 S.C. 548, 243 S.E.2d 443 (1978). There being no statutory authority, it was error to award attorney's fees against DSS.
S.C.Code Ann. § 15-77-300 (Supp. 1992) provides, in part:
In any civil action brought by the State, any political subdivision of the State or any party who is contesting state action, unless the prevailing party is the State or any political subdivision of the State, the court may allow the prevailing party to recover reasonable attorney's fees to be taxed as court costs against the appropriate agency.... (Emphasis supplied).
Here, DSS, an agency of the State, was clearly the prevailing party and, accordingly, the statute does not authorize an award of attorney's fees. Moreover, this Court has specifically held that DSS is not liable for the attorney's fees of indigent parents whose parental rights it seeks to terminate. South Carolina Dept. Social Services v. Hyatt, 277 S.C. 152, 283 S.E.2d 445 (1981).
Attorney contends that S.C.Code Ann. § 20-7-420(38) authorizes Family Court to assess DSS her fee for representing Mother. We disagree.
In Spartanburg County DSS v. Little, ___ S.C. ___, 420 S.E.2d 499 (1992), this Court recognized that S.C.Code Ann. § 15-77-300, a more specific statute dealing with civil actions instituted by the State, prevails over the general provisions of § 20-7-420(38) relied upon by Attorney. Accordingly, § 15-77-300 operates to prohibit Attorney's claim for fees.
*857 III. Taking
Finally, Attorney asserts that appointment of counsel to represent indigent parents in TPR cases amounts to a taking without just compensation, if DSS is not obligated to pay the fees.
The Court of Appeals, in Ex Parte Dibble, 279 S.C. 592, 594, 310 S.E.2d 440, 441 (Ct. App.1983), citing the "duty attendant to public office which the lawyer voluntarily seeks," held that lawyers appointed to represent an indigent inmate in his civil suit against the State, were not deprived of property without just compensation.
More recently, courts have split as to whether appointment of counsel, pro bono, to represent indigents amounts to a taking. A number of jurisdictions accord with Ex Parte Dibble and find no taking in light of an attorney's obligation to represent the defenseless or oppressed. See, e.g., In re Farrell, 127 Misc. 2d 350, 486 N.Y.S.2d 130 (1985); Yarborough v. Superior Court, 150 Cal. App. 3d 388, 197 Cal. Rptr. 737 (1st Dist. 1983) vacated on other grounds, 39 Cal. 3d 197, 216 Cal. Rptr. 425, 702 P.2d 583 (1985); New Jersey Div. of Youth Services v. D.C., 118 N.J. 388, 571 A.2d 1295 (1990); In re: Amendments to Rules Regulating the Florida Bar, 573 So. 2d 800 (1990); see generally Annot. 52 A.L.R. 4th 1063 (1987).
Other jurisdictions equate the practice of law with a property right to hold that appointment without compensation constitutes a taking. See State ex rel Scott v. Roper, 688 S.W.2d 757 (Mo.1985); Bedford v. Salt Lake County, 22 Utah 2d 12, 447 P.2d 193 (1968); Menin v. Menin, 79 Misc. 2d 285, 359 N.Y.S.2d 721 (1974).
Yet, another approach has been to find that pro bono appointments do not constitute a per se taking but that, at some point, the burden on particular attorneys may become so excessive as to rise to the level of a taking. See Family Division Trial Lawyers v. Moultrie, 233 U.S.App.D.C. 168, 725 F.2d 695 (1984). See also In Re: Amendments to Rules Regulating Florida Bar, supra (attorneys may challenge appointments where they take a substantial portion of a lawyer's available services).
We need not, in this case, decide whether excessive appointments may, at some point, place such a burden on an attorney's time and services as to constitute a taking. It is clear from the present record that no taking occurred: Attorney was appointed to this matter in December 1990, at a very late stage of the proceedings. Here, we find no taking.
CONCLUSION
We affirm Family Court's assessment of GAL fees but remand for redetermination of an appropriate amount. We reverse the assessment of Mother's attorney's fees against DSS.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
HARWELL, C.J., and FINNEY, TOAL and MOORE, JJ., concur.
NOTES
[1] Father did not appear or otherwise answer.
[2] U.S. Const. amend. V; S.C. Const. art. I, § 13. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2394480/ | 705 S.E.2d 223 (2010)
R & R INSULATION SERVICES, INC.
v.
ROYAL INDEMNITY COMPANY et al.
R & R Insulation Services, Inc. et al.
v.
Royal Indemnity Company et al.
Crane Company
v.
Royal Indemnity Company et al.
Royal Indemnity Company et al.
v.
R & R Insulation Services, Inc. et al.
Nos. A10A1537, A10A1538, A10A1539, A10A1540.
Court of Appeals of Georgia.
November 24, 2010.
Reconsideration Denied December 15, 2010.
*228 Thompson & Hine, Seth Adam Litman, Leslie Joy Suson, Smith, Moore & Leatherwood, Edward M. Newsom, Atlanta, for Appellant.
King & Spalding, Michael M. Raeber, William Lloyd Durham II, Jessica Eileen Sabbath, Cozon & O'Connor, Michael A. McKenzie, Jefferson C. McConnaughey, Atlanta, Baker, Donelson, Bearman & Berkowitz, Steven G. Hall, Karen D. Fultz, M. Yusef Mohamed, for Appellee.
DOYLE, Judge.
On May 19, 2003, a fire occurred in an oven at a chicken processing plant located in Oakwood, Georgia, and owned by Wayne Farms, LLC. After the fire, Wayne Farms and its various subrogors, including Royal Indemnity Company (collectively "Wayne Farms"), filed suit against R & R Insulation Services, Inc., a company owned by Richard Robinson ("R & R"), and Crane Company ("Crane"), doing business as Crane Composites, Sequentia Incorporate, and Lasco Composites, LP, seeking $260,000,000 in damages resulting from the fire. In its amended complaint, Wayne Farms alleged that Crane manufactured Class-C-rated fiberglass reinforced plastic panels ("Class C FRP"), which were interior finish materials used in the Oakwood facility. Wayne Farms alleged that Crane failed to appropriately test the FRP in foreseeable end-use configurations specifically, installation using nylon rivets which resulted in the misrepresentation of the actual combustibility and flame spread properties and mislabeling of the product as a Class C interior finish. Wayne Farms contended that it relied on this incorrect labeling when installing the product in its Oakwood facility, resulting in the extensive spread of the 2003 fire.
Wayne Farms also alleged that R & R, which was contracted to install FRP in the Oakwood facility, failed to sufficiently warn Wayne Farms about the combustibility of the Class C product or adequately select and install appropriate material for the area in a proper configuration. Wayne Farms alleged that R & R should have selected and installed Class A FRP or installed Class C FRP using metal fasteners rather than nylon rivets, which negligence resulted in the extensive spread of the fire at the Oakwood facility. Wayne Farms also contended that both Crane and R & R violated the Life Safety Code by manufacturing and installing Class C FRP without appropriate testing to ensure that the product met that classification in foreseeable end-use configurations.
In Case No. A10A1537, this Court granted R & R's application for interlocutory appeal of the trial court's denial of R & R's motion for summary judgment. In Case No. A10A1538, this Court granted R & R's and Crane's applications for interlocutory appeal of the trial court's order denying the parties' joint motion for sanctions for spoliation of evidence. In Case No. A10A1539, this Court granted Crane's application for interlocutory appeal of the trial court's denial of its motion *229 for summary judgment. Finally, in Case No. A10A1540, Wayne Farms cross-appeals from the trial court's denial of its motion for partial summary judgment on R & R's and Crane's affirmative defenses of comparative and contributory negligence and intervening or superceding cause. For the following reasons, we affirm in part and reverse in part the trial court's orders.
Case Nos. A10A1537 & A10A1539
To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56(c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of [a] plaintiff's case. If there is no evidence sufficient to create a genuine issue as to any essential element of [a] plaintiff's claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case; instead, the burden on the [party moving for summary judgment] may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.[1]
Viewed in this light, the record reveals the following. Wayne Farms's Oakwood Facility was a "further process facility," at which poultry was cooked, marinated, or otherwise processed and then frozen for consumer packaging. In 2002, the Oakwood facility had three indoor cooking lines known as Lines One, Three, and Five; the facility was experiencing issues with discoloration and paint flaking off the wall and ceiling finishes of Line Three, which potentially could have led to a plant shutdown for food contamination, so Wayne Farms began replacing the old interior finish materials on Line Three. Specifically at issue here is the replacement of the interior finish materials in the Line Three oven room. Wayne Farms's employees replaced the wall coverings in that room, utilizing Crane's Sequentia Class C FRP affixed with nylon rivets, but R & R was contracted to replace the ceiling of the room. Richard Robinson, the owner of R & R, visited the Line Three oven room when Wayne Farms sought bids for the ceiling replacement, and he deposed that the room was very hot, leading him to initially quote Wayne Farms a price for installing stainless steel on the ceiling in order to prevent discoloration of the product over time. This bid was rejected, and Robinson was instructed by Wayne Farms employees to rebid using FRP as the finish material rather than stainless steel. Crane manufactured the particular Class C FRP eventually installed by R & R and marketed it under the name-brand Lasco.
Randy Horwitz and Robert Carrodus oversaw the replacement of the wall and ceiling finishes in 2002. Horwitz was the operations manager and the senior employee at Wayne Farms's Oakwood facility, and Robert Carrodus was the maintenance manager at Oakwood; however, both men left their employment shortly before the fire occurred in May 2003. Horwitz deposed that he and Carrodus discussed using stainless steel as the replacement material for the walls and ceilings; however, because of time constraints and budget year concerns, plant management determined that stainless steel was not an option for the Line Three ceiling. Horwitz also deposed that during the process, he reviewed the technical data for FRP, which in addition to providing technical points for flame development and smoke point, contained a boxed warning that provided a statement similar to the following:
The numerical flame spread and smoke development ratings are not intended to reflect hazards presented by these products *230 or any other material under actual fire conditions. These ratings are determined by small-scale tests conducted by Underwriters Laboratories and other independent testing facilities using the American Society for Testing and Materials E-84 test standard (commonly referred to as the "Tunnel Test"). THESE RATINGS ARE PROVIDED FOR MATERIAL COMPARISON PURPOSES ONLY.
Like other organic building materials (e.g., wood), panels made of fiberglass reinforced plastic resins will burn. When ignited, [FRP] may produce dense smoke very rapidly. All smoke is toxic. Fire safety requires proper design of facilities and fire suppression systems, as well as precautions during construction and occupancy. Local codes, insurance requirements and any special needs of the product user will determine the correct fire-rated interior finish and fire suppression system necessary for a specific installation.
Horwitz deposed that he did not discuss with Robinson the manner in which Robinson would affix the FRP to the ceiling and did not discuss with Robinson the use of nylon rivets versus other installation methods, but he directed Robinson to install FRP and to do so in a timely manner in order to avoid breaks in production. Robinson's invoice did not contain a breakdown of price for labor, the FRP, or any fasteners, but his prior work with Crane always involved the use of nylon rivets as the fastening product. Horwitz deposed that Wayne Farms did not install any metal capable of rusting, but this would not have excluded the use of stainless steel fasteners.
Horwitz deposed that at the time he worked at the plant, another cooked-poultry line was being upgraded by replacing FRP around a fryer with stainless steel because the FRP would warp from the heat and discolor to a light brown or yellow. Horwitz explained that he and Carrodus made the decision to replace FRP around the fryer with stainless steel because of issues with the FRP near heat. Horwitz deposed that approximately 60 percent to 80 percent of the plant walls were covered in FRP at the time of the fire.
Hector Rodriguez, who worked at Wayne Farms performing maintenance, deposed that he was directed by Bob Boren, who preceded Carrodus, to purchase and install FRP from various home improvement retailers, independent of R & R. Rodriguez deposed that Wayne Farms was installing FRP in the facility before R & R was contracted to install the material, and Rodriguez always used nylon rivets when installing FRP, which he decided to use because the fasteners were located beside the FRP when he purchased the material at the home improvement store.
Carrodus normally directed Rodriguez to install FRP on the walls of the facility, and Carrodus deposed that Wayne Farms decided to install the product because "it was impervious to certain chemicals and it looked nice for our tours for our customers and that our facility looked good, that's the material we used to put up." Carrodus deposed that Rodriguez installed FRP in the plant at the direction of Wayne Farms's management, and Carrodus stated that, to his knowledge, no one at Wayne Farms ever sought advice from R & R regarding installation of FRP. Carrodus was aware that Rodriguez used nylon fasteners to adhere FRP to the walls.
Discussing R & R, Carrodus deposed that the company was used for other installation jobs, and Wayne Farms provided interior finishing materials, including FRP for installation by R & R for some jobs, while R & R obtained the materials from other vendors for some jobs. Carrodus thought that R & R was slow but did "superior work." Carrodus deposed that R & R installed the FRP as instructed and did so in a workmanlike manner. Carrodus deposed that, based on the approximate price difference between Class A and Class C FRP, he did not believe that a bid utilizing Class A FRP for the ceiling of Line Three would have been approved by upper management at Wayne Farms. Nevertheless, at the time of the installation, Carrodus was not aware that more than one kind of FRP existed.
When discussing the other materials lining the walls and ceilings in the plant, Robinson deposed that he had previously, at Wayne Farms's direction, installed a drop ceiling in the oven room of Line One with extruded *231 polystyrene foam panels ("EPS"), which Wayne Farms provided to Robinson. The distributer's invoice for the EPS alerted Wayne Farms to the fact that EPS was not fire-rated and was flammable. Carrodus deposed that he assumed the EPS was flammable because of what "the material ... was made of, [including styrofoam, simply] looked like it could be flammable."
The Fire
The cause of the fire is disputed by the parties. While R & R and Crane contend that evidence discovered prior to summary judgment shows that the fire may have begun as a hydraulic fluid fire in the ceiling over a char-marker machine, Wayne Farms theorizes that the fire began in the oven room of Line Three, which is adjacent to the char-marker room. Taking the evidence in the light most favorable to Wayne Farms, we assume for the purposes of these appeals that the fire began as it theorizes. Thus, we assume that the fire began in the Line Three oven room when the maxon burner in one of the two jet stream ovens failed. Normally, the gas flame in the oven was propelled down by the maxon device, but the failure resulted in the escape of the gas flame through the top of the oven toward the FRP ceiling.
Wayne Farms theorized that the flame heated the FRP ceiling, causing the nylon rivets used to mount the FRP to fail and the FRP to sag toward the flame. The fire then erupted and spread because the FRP was ignited on both sides of the material.
After a hearing on the parties' motions, the trial court entered a brief order denying without discussion Crane's and R & R's motions for summary judgment, Wayne Farms's motion for partial summary judgment, and the Appellants' joint motion for sanctions for spoliation of evidence.
Negligence Per Se
1. Wayne Farms argues that the Life Safety Code, which has been incorporated into the Georgia Minimum Building Standards Code, requires that Crane and R & R must test any interior finishing materials in as-installed configurations before selling or installing these products in Georgia. To support its contention, Wayne Farms relies on Life Safety Code § 6-5.1.4, which states:
Classification of interior finish materials shall be in accordance with tests made under conditions simulating actual installations, provided that the authority having jurisdiction shall be permitted to establish the classification of any material on which a rating by standard test is not available.
The Life Safety Code further states that all interior finish materials shall be classified based on flame spread and smoke development with Class A being the highest rated and Class C being the lowest rated.[2] The numerical ratings for Class C consist of flame spread of 76-200 and smoke development of 0-450.[3] Wayne Farms has not contested that Class C interior finishes are allowed in buildings such as the Oakwood plant.
Generally, negligence per se arises when a statute or ordinance is violated. The violation of certain mandatory regulations may also amount to negligence per se if the regulations impose a legal duty. OCGA § 51-1-6 provides: When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.[4]
To recover under a theory of negligence per se, [the plaintiff must show that the victim fell within the class of persons the [Life Safety Code] was intended to protect and that the injury complained of was the type of harm the [Life Safety Code] was intended to prevent. A showing of negligence per se, however, does not establish liability per se. Breach of duty alone does not make a defendant liable in negligence.][5]
*232 Crane and R & R contend that the Life Safety Code does not require testing other than the ASTM E-84 Steiner Tunnel Test, which was performed on the product and which does not require testing in an end-use configuration. Crane contends that its products are rated by independent laboratories using the test, and the Lasco Class C product was rated as such based on the required test. Wayne Farms, on the other hand, contends that the language of the Life Safety Code § 6-5.1.4 requires interior finish building materials to be tested for flame spread and smoke development in their end-use configurations, which in this case would have been a horizontal application using nylon rivets. Wayne Farms contends that Crane's failure to test the Lasco FRP in this manner constituted negligence per se under the Life Safety Code, and R & R is liable for installing a noncompliant interior finish product.
In this case, pretermitting whether the Life Safety Code section at issue requires Crane or R & R to execute any testing beyond the ASTM E-84 Steiner Tunnel Test, Wayne Farms has failed to show that any breach of this Code-created duty was the proximate cause of its injuries.[6] Wayne Farms's own experts deposed that Lasco FRP installed by R & R met the flame spread and smoke development specifications to be classified in the Class C category when applied in a horizontal configuration using nylon rivets precisely the configuration used by R & R. Accordingly, regardless of whether Crane failed to complete the particular testing envisioned by Wayne Farms prior to distributing the product as Class C, there is uncontroverted evidence that the product meets the requirements to be distributed as Class C and to be installed as an interior finish under the Life Safety Code, and thus, Wayne Farms has failed to establish that a breach of any duty under the Life Safety Code by Crane resulted in the injury in this case.[7] Accordingly, the trial court erred by denying Crane's and R & R's motions for summary judgment with regard to Wayne Farms's negligence per se claims as to the installation of Lasco Class C FRP on the ceiling of the Line Three oven room.
2. Wayne Farms's own employees installed the Sequentia Class C FRP to the walls of the oven room, and during oral argument for the motions for summary judgment on the issue of negligence per se for breach of the Life Safety Code, Wayne Farms's attorney conceded that the Sequentia FRP was "not a part of this lawsuit." Accordingly, we find that Wayne Farms has conceded that it does not have any pending claims against Crane or R & R regarding the installation of Sequentia Class C FRP, and the trial court should have granted summary judgment to Crane and R & R as to those claims.
Accordingly, based on the foregoing, the trial court erred by denying Crane's and R & R's motions for summary judgment as to the negligence per se claims for violations of the Life Safety Code.
Negligence
R & R and Crane contend that the trial court erred by denying their motions for summary judgment as to Wayne Farms's negligence claims. We affirm in part and reverse in part as fully explained below.
To state a cause of action for negligence, a plaintiff must establish the following essential elements: "(1) a legal duty; (2) a breach of this duty; (3) an injury; and (4) a causal connection between the breach and the injury."[8]
At the outset, we note that Crane did not manufacture the nylon rivets used to install the FRP to the ceiling of the Line Three oven room, and the manufacturer of the nylon rivets used in this case is not a party to this lawsuit, nor was the product *233 information or any of the warnings or instructions for the use of that product challenged by any of the parties in this case.[9]
Negligent Failure to Warn
3. "The common-law duty imposed upon suppliers of chattels includes the duty to warn of foreseeable dangers arising from the reasonable use for which the product is intended and requires the exercise of reasonable care to inform third persons of the dangerous condition or of the facts which make the product likely to become dangerous."[10] Nevertheless, "there is no duty resting upon a manufacturer or seller to warn of a product-connected danger which is obvious or generally known. The same rule applies where it appears that the person using the product should know of the danger, or should in using the product discover the danger."[11] "Whether a duty to warn exists depends upon foreseeability of the use in question, the type of danger involved, and the foreseeability of the user's knowledge of the danger. Such matters generally are not susceptible of summary adjudication and should be resolved by a trial in the ordinary manner."[12]
A breach of a duty to warn, however, must also be the cause of the injury about which the plaintiff complains, and the plaintiff must present evidence supporting a reasonable inference that the warning provided by the defendant would prevent the injury.[13] [An inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough....][14]
(a) Crane contends that the trial court erred by denying its motion for summary judgment as to Wayne Farms's claims that it failed to adequately warn of the dangers of installing Lasco Class C FRP in ceiling applications with nylon rivets. We disagree and affirm the denial for the following reasons.
(i) Crane argues that it did not owe a duty to Wayne Farms to warn of any danger of adhering Lasco Class C FRP to the ceiling because Crane had no actual or constructive knowledge of the alleged defect. Nevertheless, it is foreseeable that the public will rely upon recommendations for installation made by a manufacturer, which in this instance, included recommendations for ceiling-mounted FRP using either nylon drive rivets or noncorroding fasteners. Therefore, whether Crane breached a duty to adequately warn consumers about fastening methods recommended in its literature and whether this failure was the proximate cause of Wayne Farms's injury is an issue for the jury.[15]
(ii) Equally unmeritorious is Crane's contention that Wayne Farms's prior use of FRP transformed Wayne Farms into a "sophisticated user" or absolved Crane, as a *234 matter of law, of any duty to provide warnings about its recommended installation methods.[16] While questions exist concerning Wayne Farms's degree of knowledge of installation methods, which may have been more or less appropriate for its facility,[17] we again do not find that the evidence presented by Crane (or lack of evidence presented by Wayne Farms) necessarily compels a finding that Crane owed no duty to investigate or warn in this instance.
We agree with Crane that it cannot possibly foresee the multitudinous applications of its product within a building and that Wayne Farms was in the best position to know of the specific facts related to the installation that may have required a particular method of affixing the product.[18] Nevertheless, as we previously noted, Crane recommended certain installation methods, and it is for the jury to determine whether it provided the appropriate level of warning for those methods.[19]
(iii) Crane contends the hazard here that FRP would ignite and burn in a fire is an open and obvious hazard for which it owed no duty to warn. We recognize that being burned from a fire is often cited as an example of an injury from an open and obvious danger;[20] the danger is not so clear in this case. For instance, Carrodus deposed that while the EPS used in the facility appeared to be flammable, he offered no such testimony regarding FRP. It is undisputed that Crane manufactures FRP with various levels of fire retardant material, which are not necessarily apparent simply from looking at a piece of the material. Thus, while generally speaking one might understand that a plastic material will melt or burn when exposed to an open flame, it does not necessarily follow that one would understand this particular product would burn in the manner and speed alleged by Wayne Farms.[21] Accordingly, we find this argument without merit.
(iv) Crane also contends that Wayne Farms has failed to present evidence that any failure to warn about the use of nylon rivets was the proximate cause of Wayne Farms's injury.
First, Crane contends that the cause of the fire and reasons for its spread remain unknown, and thus, Wayne Farms's contention that the nylon rivets and FRP caused the spread of the fire is too speculative to support the denial of summary judgment in Crane's favor. We disagree. Wayne Farms has presented evidence in the form of expert testimony, photographs, and testing upon which a jury could reasonably conclude that the FRP spread the fire. Normally, issues of proximate cause are not susceptible to *235 summary adjudication except in the most plain and palpable cases, and we determine that this case is not among those so suited.[22] While the jury may ultimately determine that any additional warning would not have prevented the harm here, that question is not for this Court to determine at this stage of the proceedings.
Next, Crane maintains that Wayne Farms was not aware of and did not rely upon any recommendation made by Crane regarding fastening materials, which prevents a finding of proximate cause in this instance. This argument fails. Crane made recommendations for the installation of its product, and it is clear from the deposition testimony of Robinson and Rodriguez that the methods for affixing the product at Wayne Farms were common in the industry and consistent with Crane's recommendation, even if Wayne Farms did not rely directly upon Crane's literature for its installation methods.[23] Thus, there exists at least a question of fact as to whether an adequate warning by Crane would have prevented the spread of fire here.
Accordingly, we affirm the trial court's denial of Crane's motion for summary judgment as to its claims that Crane failed to provide adequate warning about installing to the Line Three ceilings Lasco Class C FRP with nylon rivets.[24]
(b) R & R contends that the trial court erred by denying its motion for summary judgment with regard to its alleged failure to warn about the dangers of installing Lasco Class C FRP to a ceiling with nylon rivets. We agree and reverse.
First, to the extent that Wayne Farms contends that R & R should be liable for failing to warn of any alleged hazards associated with the installation of Class C FRP using nylon rivets, we hold that there was no such duty because Wayne Farms has failed to establish through affirmative proof that this information was provided by Crane to users of FRP or that R & R actually or constructively knew at the time of installation that this particular configuration may affect the FRP's fireworthiness.[25] Moreover, Wayne Farms has presented no affirmative evidence regarding warnings or product information provided to R & R by the manufacturer of the nylon rivets used in the installation or that R & R knew or should have known through its own experience with installation with nylon rivets that the mechanism was not appropriate for the ceiling of Line Three.[26] As we stated earlier, a plaintiff must respond to a motion for summary judgment by presenting affirmative proof and may not merely rest upon its pleadings.[27] Accordingly, the trial court erred by denying R & R's motion for summary judgment as to any allegation of R & R's negligence for failing to warn of the complaint.
(c) R & R also argues that the trial court erred by denying its motion for summary judgment as to its alleged failure to suggest installation of Class A FRP or warn against installing Class C FRP. We agree and reverse.
R & R argues that any duty to warn was extinguished by Wayne Farms's knowledge of the manufacturer's warnings. R & R *236 contends that under Georgia law,[28] it was not under a duty to provide duplicative warnings regarding Class C FRP's flame spread properties because the manufacturer's warnings were previously provided to and known to Wayne Farms. Horwitz deposed that he had reviewed Crane's product specifications prior to having the ceiling replaced with FRP and was satisfied with the flame spread and smoke production information. The fact that R & R was aware that the oven room was hot is of no moment. There are no allegations or facts to support a finding that the FRP or nylon rivets spontaneously combusted or sagged merely from the ambient temperature of the room. Rather, under Wayne Farms's theory of the case, the FRP combusted as a result of a malfunction of its oven, and there is no evidence that R & R was aware of the function of the oven or that it was likely to malfunction and shoot flames into the air. Moreover, Wayne Farms installed the same class FRP on the walls of the same room, presumably with the awareness that the oven generated a great deal of heat and that a potential fire hazard existed within the room, and Wayne Farms also provided EPS, which has no flame rating, to R & R and directed R & R to install the EPS in a similar oven room. Finally, Wayne Farms has presented no case law holding that installers have a duty to suggest installation of the "best" product, and here, Wayne Farms was aware of the same manufacturer's warnings about FRP as R & R. That R & R did not insist Wayne Farms use a different product is not sufficient to sustain a claim for negligence.[29]
Negligent Manufacturing
4. To the extent that Wayne Farms alleged in its complaint that Crane was negligently manufacturing Lasco Class C FRP, we reverse the trial court's denial of summary judgment. "In order to establish a negligent manufacturing claim, the plaintiff must come forward with evidence that, among other things, there was a defect in the product when it left the manufacturer that was caused by the manufacturer's negligence."[30] Wayne Farms has failed to present any evidence that the FRP was negligently manufactured; on the contrary, the material as tested by Wayne Farms's own experts met Class C fire-rating and smoke-development standards.[31] As stated above in Division 3, any allegations that the nylon rivets were somehow defective should have been brought against the manufacturer of that product, which was not produced or distributed by Crane.
Negligent Installation
5. To the extent that Wayne Farms has asserted claims of breach of warranty to perform in a workmanlike manner against R & R by installing Lasco Class C FRP with nylon rivets rather than Class A FRP or Class C FRP with metal fasteners, we hold that the trial court erred by denying R & R's motion for summary judgment.
The law imposes upon building contractors and others performing skilled services the obligation to exercise a reasonable degree of care, skill, and ability, which is generally taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by others of the same profession.[32]
As previously concluded, Wayne Farms's own testing concluded that Lasco FRP installed by R & R met Class C ratings for flame spread and smoke production when tested in a ceiling installation utilizing nylon rivets. Thus, the product met the minimum building code specifications for interior finish products, and in any event, Wayne Farms has failed to point to affirmative evidence in the record that R & R breached its duty to perform in a skillful manner by so installing *237 the product.[33] Wayne Farms has therefore failed to produce affirmative evidence of breach of duty on the part of R & R in so installing the Lasco Class C FRP.
Case No. A10A1540
6. Next, we address Wayne Farms's cross-appeal from the trial court's denial of its motion for partial summary judgment.
(a) On appeal, Wayne Farms first argues that the trial court erred by denying its motion because Crane's asserted affirmative defenses[34] of intervening or superceding cause and contributory or comparative negligence are related to the start of the fire and not the spread of the fire. Wayne Farms contends that damage from the start of the fire is not at issue in this case, and therefore, the Appellants should be precluded from asserting these defenses. We disagree and affirm the trial court.
Evidence of contributory negligence showing that the plaintiff "is to some degree responsible for the injury or damages claimed" is relevant and admissible for reduction and apportionment of damages in cases involving injury to persons or property. Closely allied to the doctrine of contributory negligence is the rule of avoidable consequences, which denies recovery for any damages which could have been avoided by reasonable conduct on the part of the plaintiff. And a plaintiff injured by the negligence of another must mitigate his damages as far as is practicable by the use of ordinary care and diligence.[35]
The trial court correctly denied Wayne Farms's motion for partial summary judgment because the jury could find that Wayne Farms's alleged negligence of causing the fire could have been prevented and served to extinguish completely any liability on the part of Crane. Wayne Farms contends that its 50-state survey reflects that most courts in this country have held that the cause of a fire is irrelevant to the question of whether a defendant is liable for fire spread damages. Wayne Farms's cases, however, are inapplicable to the case at hand. Wayne Farms has failed to cite a single case in which the cause of the fire was determined by a court to be unrelated to the issue of whether the manufacturer or installer of a product contained in the property allegedly increased the spread of the fire. The cited cases involve (1) delay in detection or rendering aid;[36] (2) failure of a flame suppression system;[37] or (3) spread of a fire from the property of one to the adjacent property of another.[38] It is for the jury to determine liability and amount of damages in this instance, and the determination is not necessarily bound to Wayne Farms's determination that $260,000,000 constituted the loss from the spread rather than start of the fire.[39]
Based on Wayne Farms's theory of negligence, determination of the issue of how and where the fire started necessarily will affect *238 the determination of whether the FRP negligently spread the fire from the failure of the nylon rivets. Here, the evidence of Wayne Farms's knowledge of the properties of FRP and its various fastening methods is a question of fact, and there are additional disputed issues as to whether Wayne Farms could have prevented altogether the fire with the utilization of safety mechanisms.
To the extent that Wayne Farms is asking for exclusion of various pieces of evidence based on the irrelevant nature of alleged safety violations in relation to Crane's alternative theories of causation, such determinations of admissibility of evidence are pre-trial matters that should first be made by the trial court, and we will not address them here.[40] Accordingly, Wayne Farms's enumeration is without merit.
(b) Wayne Farms also contends that Crane's failure to test its FRP in the installation configuration it later suggested to end users constitutes negligence per se on the part of the Appellants, which also bars the assertion of the affirmative defenses of intervening or superceding cause and contributory or comparative negligence. Based on our conclusion in Divisions 1 and 2 of this opinion that Wayne Farms's negligence per se claims fail as a matter of law, this enumeration is without merit.
Based on the foregoing, the trial court correctly denied Wayne Farms's motion for partial summary judgment, and we affirm that decision.
Case No. A10A1538
7. Finally, R & R and Crane contend that the trial court abused its discretion[41] by denying their joint motion for sanctions, specifically, dismissal of the case, for Wayne Farms's alleged spoliation of evidence.
After the May 19, 2003 fire, Wayne Farms began investigating the remains of Line Three, and within two weeks of the fire, eight parties were provided notice of their potential liability by Wayne Farms and of opportunities to inspect the scene. The Appellants were not given notice at that time. By August 2003, Wayne Farms had gutted the remains of Line Three. In September 2003, Wayne Farms notified the Appellants of potential claims against them stemming from the fire. The Appellants contacted Wayne Farms in order to investigate the scene, but were told that the origin area was repaired and was not scheduled by Wayne Farms for an inspection until July 2004.
The Appellants contend that they have been prejudiced by the destruction of the fire scene prior to their investigation because they were precluded from conducting their own investigation into the fire's origin, which they contend is essential to countering Wayne Farms's theory of how the fire started and whether the installation of FRP with nylon rivets led to the negligent spread of the fire. Specifically, the Appellants contend that they were precluded from investigating whether the fire began in the adjacent char-marker room, which they contend is supported by Wayne Farms's initial investigation and by employee eyewitness and firefighter accounts of the scene. The Appellants contend that Wayne Farms was legally obligated to preserve the remains of the char-marker room and its equipment along with the other remnants of Line Three, and the Appellants argue that Wayne Farms has admitted that the destruction of that evidence was prejudicial to the Appellants because examination of the char-marker itself (which Wayne Farms sold) was critical to the Appellants' cases.
Additionally, the Appellants contend that the spoliation of the hydraulic piping system from the ceiling of the char-marker room prejudiced their ability to present an adequate defense, and the prejudice cannot be diminished through the use of other materials (other than the fire remnants) because *239 Wayne Farms did not have an up-to-date drawing of the system at the time of the fire.
The Appellants maintain that Wayne Farms also destroyed any remnants of the nylon rivets, which they have alleged to have failed and caused the FRP to sag and catch fire, and no other fasteners, which may have been used in attaching the FRP in the oven room, were preserved.
The Appellants also contend that the investigation conducted by Wayne Farms was poorly executed and incomplete and does not diminish any prejudice from destruction of the evidence and removal of the evidence and debris from the scene. The Appellants explain that Wayne Farms did not accurately or thoroughly measure the position of equipment in the oven room in relation to the FRP at issue or thoroughly investigate the hydraulic system, including: determining whether hydraulic fluid remained after the fire, assessing the lines and pipes, or detailing where the hydraulic fluid reservoir was located (or even if one was located) on Line Three. Thus, the Appellants contend that they have been prevented from marshaling facts in support of their defenses to Wayne Farms's claims.
(a) "Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation. Proof of spoliation raises a rebuttable presumption against the spoliator that the evidence favored the spoliator's opponent...."[42] "Where a party has destroyed or significantly altered evidence that is material to the litigation, the trial court has wide discretion to fashion sanctions on a case-by-case basis."[43]
The trial court should weigh five factors before exercising its discretion to impose sanctions: (1) whether the party seeking sanctions was prejudiced as a result of the destruction of the evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the party who destroyed the evidence acted in good or bad faith; and (5) the potential for abuse if expert testimony about the evidence was not excluded.[44]
In this case, the trial court provided no explanation in support of its denial of the Appellants' motion either at the hearing on the motion for spoliation of evidence or in its order denying the motion. In conjunction with the voluminous record involved in this case, this lack of explanation from the trial court has resulted in an arduous task of reviewing the determination; nevertheless, we are obligated to presume that the trial court knows and applies the correct law.[45] The Appellants initially prayed for various forms of relief from the alleged spoliation, but by the conclusion of their motion, their prayer was reduced to dismissal of the case. Thus, one of two conclusions follow from the trial court's denial of the motion: either the trial court determined that there was no spoliation of evidence attributable to Wayne Farms, or the trial court determined that dismissal, the only requested relief, was inappropriate based on the scope of any attributable spoliation.[46]
Our review of the record establishes that Wayne Farms spoliated evidence and that spoliation has resulted in prejudice to the Appellants. According to Frank Hagan, who conducted the investigation of the fire scene, on August 11, 2003, approximately two months after the fire and one month prior to providing notice to the Appellants, Wayne Farms removed various pieces of equipment from the scene, including the two ovens, a spiral freezer, and the char-marker. A wall or remnants of a wall between the oven room and the char-marker room was demolished, *240 and although the demolition was documented, the physical remains of the wall itself were not preserved. Because Wayne Farms disposed of the char-marker, spiral freezer, and steam chamber, the Appellants have not had an opportunity to investigate those artifacts, and although some remnants of the ceiling of the char-marker room and oven room remained in evidence, the Appellants were unable to investigate or document the in-place remnants of the ceiling of the oven and char-marker rooms.
Wayne Farms argues that there was no abuse of discretion by the trial court in denying the spoliation motions because the missing char-marker and any evidence from the char-marker room is inapplicable to the proceedings because the origin of the fire is not at issue in this case. The reasoning here, however, assumes the conclusion reached by Wayne Farms's experts that the fire started in the manner they have alleged. In defending the fire spread claims, however, the Appellants have been hampered in presenting their defense to the claims because they were prevented from supporting their theory that the fire started in another location and that Wayne Farms's theory as to their negligence is incorrect. Contrary to Wayne Farms's argument, if the fire's origin was not in the oven or anywhere underneath the FRP ceiling of Line Three for instance, above the Line Three ceiling instead then the failure of the nylon rivets would not have caused the flames to spread as they did. Under these circumstances, the ability to examine the char-marker, other machines, the hydraulic system, and remnants of the FRP intact immediately after the fire would have enhanced the Appellants' ability to refute the claims alleged by Wayne Farms.
The photographs and video of the scene are helpful in reconstructing the state of the evidence for the Appellants' experts, but this Court has opined on numerous occasions that "[a]lthough the existence of photographs may mitigate the loss, they are no substitute for the actual evidence."[47]
With regard to their claims, Wayne Farms contends that testing on any Lasco Class C FRP with any nylon rivets will be possible, and thus, the Appellants have not been prejudiced by destruction of the actual fire remains; however, the Appellants were not given an opportunity to investigate whether there were remains of the nylon rivets at the scene or determine the state of the rivets or how they may have detached, if at all, from the ceiling, which evidence may have refuted Wayne Farms's contentions.
(b) Nevertheless, although we have determined that Wayne Farms spoliated evidence to the detriment of the Appellants, we cannot conclude that the trial court abused its discretion by denying the joint motion for spoliation. Normally, a trial court has available a range of sanctions to impose in the event that it determines spoliation has occurred.[48] Here, however, the Appellants failed to seek a remedy other than dismissal in their motion for reconsideration of the trial court's order denying their motion for sanctions for spoliation,[49] and the Appellants' brief before this Court argues that the trial court erred by failing to dismiss the case, but does not allege error for failing to grant another form of relief.[50] Dismissal is usually reserved for cases involving malicious destruction of evidence, which does not appear to be the case here.[51] We are unable, as a matter of law, to hold that the trial court abused its discretion by declining to impose the ultimate remedy available to a court in a *241 case of spoliation.[52] It does not appear from the record that Wayne Farms maliciously destroyed evidence, and the ability of the Appellees to present a defense has not been so diminished as to be impossible or improbable. Accordingly, the trial court's order denying the Appellees' motions to dismiss based on spoliation of evidence is affirmed.[53]
Judgments affirmed in part and reversed in part.
ANDREWS, P.J., and ELLINGTON, J., concur.
NOTES
[1] Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).
[2] Life Safety Code § 6-5.2.1.
[3] Id.
[4] (Punctuation omitted.) Norman v. Jones Lang LaSalle Americas, Inc., 277 Ga.App. 621, 627-628(2)(b), 627 S.E.2d 382 (2006).
[5] (Citations and punctuation omitted.) Brazier v. Phoenix Group Mgmt., 280 Ga.App. 67, 70(1)(a), 633 S.E.2d 354 (2006).
[6] See, e.g., Combs v. Atlanta Auto Auction, 287 Ga.App. 9, 13-14(3), 650 S.E.2d 709 (2007) (holding that accident would have occurred regardless of whether defendant violated ordinance).
[7] See id. (theory of liability was foreclosed by failure to produce evidence of proximate cause). See also Lau's Corp., 261 Ga. at 491, 405 S.E.2d 474.
[8] (Punctuation omitted.) Dozier Crane & Machinery v. Gibson, 284 Ga.App. 496, 499(2), 644 S.E.2d 333 (2007).
[9] We note that the record in this case is voluminous-consisting of more than seventy volumes in the main record, two supplemental records, and thousands of pages. Moreover, the trial court's order denying the motions at hand consists of a one-sentence denial of each motion without further explanation. Thus, in order to conduct a de novo review of the record, our reliance on counsel for appropriate citation to the record was great; it is incumbent not only upon the party alleging error, but also upon the party urging affirmance to support their position with appropriate record citations in support of their arguments. See, e.g., Lau's Corp., 261 Ga. at 491, 405 S.E.2d 474 (nonmovant may not rest on his pleadings, but must point to specific, competent evidence giving rise to a triable issue); Wilson v. Mallard Creek Holdings, 238 Ga.App. 746, 747-748, 519 S.E.2d 925 (1999) (parties must supply citation to the record to support their claims).
[10] (Punctuation omitted.) Dozier Crane & Machinery, 284 Ga.App. at 499(2), 644 S.E.2d 333.
[11] (Punctuation omitted.) Moore v. ECI Mgmt., 246 Ga.App. 601, 606(2), 542 S.E.2d 115 (2000).
[12] (Citation and punctuation omitted.) Omark Indus. v. Alewine, 171 Ga.App. 207, 208-209, 319 S.E.2d 24 (1984).
[13] See Niles v. Board of Regents, 222 Ga.App. 59, 61(2), 473 S.E.2d 173 (1996).
[14] (Citation and punctuation omitted.) Id.
[15] See Boyce v. Gregory Poole Equip. Co., 269 Ga.App. 891, 895-898(1)(c), 605 S.E.2d 384 (2004).
[16] Compare Niles, 222 Ga.App. at 60-61(1), 473 S.E.2d 173 (holding that no duty existed to warn a doctoral physics student who graduated with highest honors in chemistry about dangers of mixing chemicals or about the necessity to take precautions before doing so).
[17] We specifically note that in 1993, Wayne Farms may have conducted its own in-house testing of FRP and its potential installation methods, resulting in an in-house determination that only Class A FRP with metal fasteners be utilized in sensitive areas of the plant. We do not find the documents produced before the trial court conclusive of this fact, however, although reasonable inferences may ultimately be drawn by the jury based on the documents and related testimony.
[18] See Exxon Corp. v. Jones, 209 Ga.App. 373, 375, 433 S.E.2d 350 (1993) (Because "the product was sold to a commercial operator which may reasonably have been expected to be familiar with the dangers resulting from such misuse or neglect, we do not believe that the manufacturer's failure to warn of such dangers may be considered the proximate cause of the injury. To hold otherwise would be to place upon the manufacturer the impossible task of cataloging every conceivable way in which injury might result from the negligent operation or maintenance of a product.") (punctuation omitted).
[19] See id. ("Whether a duty to warn exists depends upon foreseeability of the use in question....") (punctuation omitted).
[20] See, e.g., White v. Ga. Power Co., 265 Ga.App. 664, 666(1), 595 S.E.2d 353 (2004) ("The danger from fire or water is one that even young children may be said to apprehend.") (punctuation omitted).
[21] Compare with id. (danger of drowning in deep water or being burned by a fire are open and obvious dangers); Moore, 246 Ga.App. at 607(2), 542 S.E.2d 115 ("The danger of electrocution from miswiring an electrical appliance should be both open and obvious to an experienced installer.").
[22] See Eyster v. Borg-Warner Corp., 131 Ga.App. 702, 706(4), 206 S.E.2d 668 (1974).
[23] See Boyce, 269 Ga.App. at 897(1)(c)(2), 605 S.E.2d 384.
[24] For the same remaining factual questions, we find that Wayne Farms's negligent misrepresentation claims as to the flame spread qualities of Lasco Class C FRP and whether Crane negligently supplied information based on testing that lacked information regarding each fastening device must also proceed past summary judgment. See id. at 898-899(2), 605 S.E.2d 384.
[25] See DeLoach v. Rovema Corp., 241 Ga.App. 802, 804, 527 S.E.2d 882 (2000) (seller's liability limited to dangers known at time of the product sale). Compare Boyce, 269 Ga.App. at 896-897(1)(c)(2), 605 S.E.2d 384 (investigation by seller may impose additional duty to warn of defect).
[26] See DeLoach, 241 Ga.App. at 804, 527 S.E.2d 882. Additionally, Wayne Farms's own employees purchased nylon rivets at various home improvement stores and would have been provided with the same warnings and information about the product, whatever those warnings and information may be.
[27] See Lau's Corp., 261 Ga. at 491, 405 S.E.2d 474.
[28] See Farmer v. Brannan Auto Parts, 231 Ga. App. 353, 498 S.E.2d 583 (1998).
[29] See Niles, 222 Ga.App. at 61-62(2)(3), 473 S.E.2d 173; Exxon Corp., 209 Ga.App. at 375, 433 S.E.2d 350; Eyster, 131 Ga.App. at 706(4), 206 S.E.2d 668.
[30] Miller v. Ford Motor Co., 287 Ga.App. 642, 644(1), 653 S.E.2d 82 (2007).
[31] See Division 1, supra.
[32] (Punctuation omitted.) Hudgins v. Bacon, 171 Ga.App. 856, 861(3), 321 S.E.2d 359 (1984).
[33] Compare id. at 858(1), 321 S.E.2d 359.
[34] R & R also asserted various affirmative defenses, but based on our holding in Divisions 4(b), 4(c), and 5, we address the appeal of these defenses as to Crane, the only remaining defendant.
[35] (Citations and punctuation omitted.) Bailey v. Annistown Road Baptist Church, 301 Ga.App. 677, 682(1), 689 S.E.2d 62 (2009).
[36] See Butler v. Pittway Corp., 770 F.2d 7 (2nd Cir.1985); Fireman's Fund Ins. Co. v. Aalco Wrecking Co., 466 F.2d 179, 184 (8th Cir.1972) (arguing that delay in the detection of the fire caused the extensive destruction and resulted from defendant's failure to have a watchman on the premises).
[37] See Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819, 826 (2000); Evans Cabinet Corp. v. "Automatic" Sprinkler Corp. of America, 167 Ga. App. 502, 306 S.E.2d 750 (1983); Cartel Capital Corp. v. Fireco of New Jersey, 410 A.2d 674, 682, (1980); Doyle v. South Pittsburgh Water Co., 414 Pa. 199, 199 A.2d 875 (1964).
[38] See Fireman's Fund Ins. Co., 466 F.2d at 183 (holding that "[i]f an owner of property negligently allows the spread of a fire on his premises, he may be liable for injury to others even though he has no connection with the fire's origin"); Chicago & C. v. Poarch, 292 F.2d 449 (9th Cir. 1961) (fire spread from defendant's property onto the property of the plaintiff); Atmore Truckers Assn. v. Westchester Fire Ins. Co., 218 F.2d 461 (5th Cir.1955).
[39] See, e.g., Heston v. Lilly, 248 Ga.App. 856, 857(1), 546 S.E.2d 816 (2001) (jury determines what loss or damage flows from a party's negligence).
[40] See, e.g., Dept. of Transp. v. Taylor, 264 Ga. 18, 21(3)(c) n. 2, 440 S.E.2d 652 (1994) (a motion for summary judgment is an appropriate vehicle for addressing the insufficiency of a party's evidence, while a motion in limine is the appropriate vehicle for addressing issues of inadmissibility on the basis of relevance or undue prejudice).
[41] See AMLI Residential Properties v. Ga. Power Co., 293 Ga.App. 358, 361(1), 667 S.E.2d 150 (2008).
[42] (Punctuation omitted.) de Castro v. Durrell, 295 Ga.App. 194, 205(3), 671 S.E.2d 244 (2008).
[43] AMLI Residential Properties, 293 Ga.App. at 361(1), 667 S.E.2d 150.
[44] (Punctuation omitted.) Id.
[45] See Munoz v. American Lawyer Media, 236 Ga.App. 462, 466(2), 512 S.E.2d 347 (1999); Green v. Sun Trust Banks, 197 Ga.App. 804, 807(3)(b), 399 S.E.2d 712 (1990).
[46] See, e.g., Kitchens v. Brusman, 303 Ga.App. 703, 704(1), 694 S.E.2d 667 (2010). Additionally, the Appellants' motion for reconsideration fails to argue that the trial court should have granted another form of relief and, again, prayed only for dismissal of the claims.
[47] Bridgestone/Firestone North American Tire v. Campbell, 258 Ga.App. 767, 769, 574 S.E.2d 923 (2002).
[48] See R.A. Siegel Co. v. Bowen, 246 Ga.App. 177, 182(2), 539 S.E.2d 873 (2000).
[49] Cf. Bridgestone/Firestone North American Tire, 258 Ga.App. at 771, 574 S.E.2d 923 (addressing only the issue of whether the trial court should have granted harsher sanctions). Compare with Kitchens, 303 Ga.App. at 709-710(1)(c), 694 S.E.2d 667 (remanding for the trial court to fashion the appropriate remedy for spoliation of the evidence based on the specific facts of the case).
[50] See Pritchett v. Afzal, 293 Ga.App. 302, 303(1), 666 S.E.2d 641 (2008).
[51] See Bridgestone/Firestone North American Tire, LLC, 258 Ga.App. at 770, 574 S.E.2d 923.
[52] See id. at 771, 574 S.E.2d 923 (holding that, although the trial court would have been authorized to dismiss the complaint based on the plaintiff's spoliation of evidence, it was not mandated as a matter of law to so rule). But see Baxley v. Hakiel Indus., 282 Ga. 312, 313-314, 647 S.E.2d 29 (2007) (reversing this Court's affirmance of the trial court and holding that it was an abuse of discretion not to impose sanctions for spoliation of a video tape, even if the video did not contain images of the purported drunk driver); Kitchens, 303 Ga.App. at 709-710(1)(c), 694 S.E.2d 667 (holding that the trial court abused its discretion by denying motion for sanctions for spoliation of evidence and remanding for consideration of determination of an appropriate remedy).
[53] We note that a trial court may revise an interlocutory ruling at any time prior to final judgment notwithstanding any holding herein that is now binding on the trial court below. See OCGA § 9-11-60(h); Lott v. Arrington & Hollowell, P.C., 258 Ga.App. 51, 56(3), 572 S.E.2d 664 (2002). See also Moon v. State, 287 Ga. 304, 306-308(1), 696 S.E.2d 55 (2010) (Nahmias, J., concurring). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/403933/ | 679 F.2d 100
1982-2 Trade Cases 64,756
FRIENDSHIP MATERIALS, INC., Plaintiff-Appellee,v.MICHIGAN BRICK, INC., Cadillac Brick Co., and Century BrickCo., Defendants-Appellants.
No. 80-1018.
United States Court of Appeals,Sixth Circuit.
Argued June 1, 1981.Decided May 26, 1982.
Gregory L. Curtner, Detroit, Mich., for defendants-appellants.
Robert V. Seymour, Southfield, Mich., for plaintiff-appellee.
Before ENGEL and JONES, Circuit Judges, and WEICK,* Senior Circuit Judge.
ENGEL, Circuit Judge.
1
The defendant Michigan Brick, Inc. ("Michigan Brick") appeals the order of the district court granting a preliminary injunction in this antitrust case. The plaintiff is Friendship Materials, Inc. ("Friendship"), a Detroit area firm which sells building materials and supplies to the construction industry. Michigan Brick manufactures a particular kind of clay brick known as face brick and sells it to dealers in southeastern Michigan as well as to dealers in Canada and other parts of the United States. Face brick is popular in residential and commercial construction, and Michigan Brick is the only manufacturer of face brick in southeastern Michigan. The closest competing manufacturer of face brick is located in Ohio some 180 to 190 miles from Detroit.
2
Friendship's complaint alleged that Michigan Brick conspired with two of its Detroit area dealers, Cadillac Brick Co. ("Cadillac") and Century Brick Co. ("Century"),1 to prevent Friendship from obtaining face brick manufactured by Michigan Brick, and that this conspiracy amounted to an unreasonable restraint of trade violative of section 1 of the Sherman Act.2 The complaint also alleged a conspiracy among the defendants to monopolize and attempt to monopolize the distribution and sale of face brick in southeastern Michigan, in violation of section 2 of the Sherman Act.3 Friendship demanded treble damages under 15 U.S.C. § 15 (1976), and preliminary and permanent injunctive relief under 15 U.S.C. § 26 (1976).
3
In 1977, Michigan Brick had seven dealers in the metropolitan Detroit area. These dealers sold approximately 12 million Michigan Brick face bricks in the Detroit market during that year. This amounted to approximately 30 percent of Michigan Brick's total production, and accounted for 10 to 20 percent of the total Detroit brick market. Cadillac is by far the largest Michigan Brick dealer, having accounted for approximately 80 percent of the Michigan Brick sales in Detroit in 1977. Friendship and Cadillac are direct competitors in selling face brick and other types of brick to builders and contractors in the Detroit metropolitan market. Michigan Brick has consistently refused to make Friendship one of its dealers or to sell its face brick directly to Friendship.
4
Beginning in 1975, Friendship was able to acquire Michigan face brick indirectly, purchasing the face brick from Century at a premium of $3.00 to $5.00 per thousand over the price which Michigan Brick charged its dealers. This enabled Friendship to compete with Cadillac and other Michigan Brick dealers in the sale of Michigan face brick. In late 1976, however, Friendship's indirect source of Michigan face brick was cut off by Century's refusal to continue selling the brick to it. Friendship was thereafter unable to obtain the brick, directly or indirectly. Friendship's antitrust claim under section 1 of the Sherman Act is that Cadillac and Michigan Brick successfully conspired to coerce Century from selling to Friendship.
5
After an extensive hearing, the district court concluded that Friendship had shown a substantial likelihood of ultimately proving both a vertical and horizontal conspiracy between the defendants to restrain trade:
6
The defendants have entered into an agreement which has deprived, and will continue to deprive, the plaintiff of its source of Michigan Face Bricks. The sole purpose of the agreement between them is to prevent the plaintiff from engaging in intra-brand price competition with Cadillac Brick Co. and perhaps with others....
7
Friendship Materials, Inc. v. Michigan Brick, Inc., Civ. No. 77-70542, Mem. Op. at 1 (E.D.Mich. April 25, 1979) (hereinafter "Memorandum Opinion").
8
Considering the entire evidence, it now appears with almost certainty that the decision of Century Brick Company ... to discontinue selling Michigan Face Brick to Friendship Materials, Inc. ... was a direct result of pressure from Michigan Brick, Inc. ... applied at the insistence of Cadillac Brick Co. ..., and that there was an implied agreement between Cadillac, Michigan Brick, and Century that Century would discontinue selling Michigan Face Brick to Friendship. The reasons given by Century for such action were pretextual.
9
Memorandum Opinion at 1 (Nov. 21, 1979). The district court held that these facts, if established, would amount to a per se violation of section 1 of the Sherman Act, and that Friendship had therefore demonstrated a substantial likelihood of ultimate success on its section 1 claim.
10
The district court did not expressly decide whether Friendship had demonstrated that it would suffer any irreparable injury in the absence of a preliminary injunction. Instead, the district court appears to have weighed the harm likely to be suffered by Friendship absent a preliminary injunction against the harm an injunction could cause to the defendants. According to the district court, this balance of harms favored the granting of an injunction:
11
As stated on the record, there is little, if any, credible evidence to support a conclusion that Friendship will be put out of business or even out of the brick business if it does not re-establish a source of supply of Michigan Face Brick during the pendency of this suit. The plaintiff's competitive position is damaged, however. It is difficult to conceive how the defendants can suffer any significant hardship by being restrained from the continuation of practices which violate the basic economic law of the land.
12
Memorandum Opinion at 2 (April 25, 1979). Consequently, the district court issued a preliminary injunction designed to prevent Michigan Brick from interfering in any way with the sale of Michigan face brick by one of its dealers to Friendship. The primary provision of the injunction is as follows:
13
1. Michigan Brick is restrained from discouraging or prohibiting any of its dealers in Michigan from selling Michigan Face Brick, and it is restrained from imposing or threatening to impose any sanctions against one of its dealers who elects to sell brick to Friendship.
14
Because the district court erred in issuing the preliminary injunction without making any findings of irreparable injury to Friendship absent the injunction, we vacate the preliminary injunction and remand.
15
* Appellate review of a district court decision to grant or deny a preliminary injunction is, of course, limited to "a determination of whether the District Court abused its discretion." Mason County Medical Ass'n v. Knebel, 563 F.2d 256, 261 (6th Cir. 1977). In exercising its discretion to grant a preliminary injunction, however, the district court must consider four factors:
16
1) Whether the plaintiff has shown a strong or substantial likelihood or probability of success on the merits;
17
2) Whether the plaintiff has shown irreparable injury;
18
3) Whether the issuance of a preliminary injunction would cause substantial harm to others;
19
4) Whether the public interest would be served by issuing a preliminary injunction.
20
Id. Although these four factors guide the discretion of the district court, they do not establish a rigid and comprehensive test for determining the appropriateness of preliminary injunctive relief. "A fixed legal standard is not the essence of equity jurisprudence...." Roth v. Bank of the Commonwealth, 583 F.2d 527, 537 (6th Cir. 1978). Nevertheless, this court has never held that a preliminary injunction may be granted without any showing that the plaintiff would suffer irreparable injury without such relief. Despite the overall flexibility of the test for preliminary injunctive relief, and the discretion vested in the district court, equity has traditionally required such irreparable harm before an interlocutory injunction may be issued. See Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 61, 64-65, 95 S. Ct. 2069, 2077, 2078-2079, 45 L. Ed. 2d 12 (1975); Sampson v. Murray, 415 U.S. 61, 88, 94 S. Ct. 937, 951, 39 L. Ed. 2d 166 (1974); Beacon Theatres v. Westover, 359 U.S. 500, 506-07, 79 S. Ct. 948, 954, 3 L. Ed. 2d 988 (1959); E.E.O.C. v. Hocking Corp., 666 F.2d 1037, 1039 (6th Cir. Dec. 16, 1981); United States v. Spectro Foods Corp., 544 F.2d 1175, 1181 (3rd Cir. 1976); 11 Wright & Miller, Federal Practice and Procedure § 2948, pp. 430-441 (1973); see generally Leubsdorf, The Standard For Preliminary Injunctions, 91 Harv.L.Rev. 525, 527-37 (1978). In Sampson v. Murray, supra, the Supreme Court reversed the granting of a preliminary injunction, in part because the plaintiff had not made any showing of irreparable harm. The Court stated:
21
We believe that the Court of Appeals was quite wrong in suggesting that at this stage of the proceeding the District Court need not have concluded that there was actually irreparable injury. This Court has stated that "(t)he basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies" .... Yet the record before us indicates that no witnesses were heard on the issue of irreparable injury, that respondent's complaint was not verified, and that the affidavit she submitted to the District Court did not touch in any way upon considerations relevant to irreparable injury.
22
415 U.S. at 88, 94 S. Ct. at 951 (citations omitted).
23
The requirement of irreparable harm to support the granting of a preliminary injunction applies to private antitrust actions in the same way it applies to equity actions in general. This is made clear, both implicitly and explicitly, by section 16 of the Clayton Act, 15 U.S.C. § 26 (1976), which provides:
24
Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws, ... when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings, and upon the execution of proper bond against damages for an injunction improvidently granted and a showing that the danger of irreparable loss or damage is immediate, a preliminary injunction may issue ....
25
(emphasis added). Accord, Dataphase Systems, Inc. v. CL Systems, Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc); Triebwasser & Katz v. American Telephone & Telegraph Co., 535 F.2d 1356, 1359 (2d Cir. 1976); Automatic Radio Mfg. Co. v. Ford Motor Co., 390 F.2d 113, 116 (1st Cir.), cert. denied, 391 U.S. 914, 88 S. Ct. 1807, 20 L. Ed. 2d 653 (1968); II Areeda & Turner, Antitrust Law § 329, pp. 138-39 (1978); 15 Von Kalinowski, Antitrust Laws and Trade Regulation § 114.01(1), pp. 114-2, 114-6, 114-7 (1981).
II
26
In granting Friendship's motion for a preliminary injunction, the district court appears to have employed the so-called "alternate" test which has been recognized by several circuits. Otherwise known as the "balance of hardships" test, the alternate test requires a showing of "sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Sonesta Int'l Hotels Corp. v. Wellington Associates, 483 F.2d 247, 250 (2d Cir. 1973) (emphasis in original). Our review of the record convinces us that the district judge viewed the alternate test as eliminating the traditional requirement of irreparable injury whenever the balance of harms tips decidedly in favor of the plaintiff.4 As a result, the district court made no formal findings as to whether Friendship demonstrated a risk of suffering irreparable injury if a preliminary injunction were not granted. The district court found only that Friendship's "competitive position (would be) damaged," and that defendants would not suffer any significant hardship if preliminary relief were granted.
27
Because the district judge clearly did not consider it necessary to find irreparable harm to the plaintiff under the "balance of hardships" test, we cannot view the district court's general finding that Friendship's competitive position would be damaged absent a preliminary injunction as a finding of irreparable injury. On the other hand, we cannot read the district court's conclusion that Friendship was in little danger of going out of the brick business as a finding that Friendship would not suffer irreparable injury if preliminary relief were denied.
28
Following an oral argument before the district court on April 19, 1979, the district judge informally stated his tentative views as to whether Friendship had demonstrated irreparable injury. We refuse, however, to consider these remarks from the bench as findings of the district court. The subject of irreparable harm was not addressed in the two Memorandum Opinions later issued by the district court; the district judge repeatedly told the parties that his remarks were not to be taken as findings of fact; and, in any event, the remarks were made before he received all the evidence relevant to the motion and were clearly intended to be tentative only. We therefore review a preliminary injunction issued by the district court without any findings that the injunction was or was not necessary to prevent irreparable injury to the plaintiff.
29
Considerable confusion has been created, and the district court in this case may have been misled, by language in some of the cases which appears to state the "balance of hardships" test as an alternative to the traditional irreparable harm test. See, e.g. Charlie's Girls, Inc. v. Revlon, Inc., 483 F.2d 953, 954 (2d Cir. 1973) (per curiam). This view of the "balance of hardships" test is erroneous. The irreparable injury requirement is built into the balance of hardships approach: the irreparable harm to the plaintiff if there is no preliminary injunction is balanced against any injuries likely to be suffered by the defendant(s) if a preliminary injunction is granted. Several of the circuits which have recognized the "balance of hardships" test have now made it clear that the plaintiff must always demonstrate some irreparable injury before a preliminary injunction may issue. See Dataphase Systems, Inc. v. CL Systems, Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc); Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189, 195, 196 (4th Cir. 1977); Triebwasser & Katz v. American Telephone & Telegraph Co., 535 F.2d 1356, 1359 (2d Cir. 1976). As the Second Circuit noted in Triebwasser,
30
Our difficulty, however, is with the finding that the balance of hardships tips decidedly in the plaintiff's favor. At the outset, we should note that this language of the second prong of the (balance of hardships) test does not eliminate the basic obligation of the plaintiff to make a clear showing of the threat of irreparable harm. That is a fundamental and traditional requirement of all preliminary injunctive relief, since equity cannot intervene where there is an adequate remedy at law. If the element of irreparable damage is prerequisite for relief where the plaintiff must show probable success on the merits, then a fortiori where the plaintiff establishes something less than probable success on the merits, need for proof of the threat of irreparable damage is even more pronounced. In sum, the balancing of hardships test ... necessarily includes the showing of irreparable harm.
31
535 F.2d at 1359 (citations omitted). See also Frische's Restaurants, Inc. v. Elby's Big Boy of Steubenville, Inc., 670 F.2d 642, 651 (6th Cir. Feb. 3, 1982); 15 Von Kalinowski, Antitrust Laws and Trade Regulation § 114.01(1), p. 114-7 (1981).
32
Whatever the merits of the alternate, or "balance of hardships" test may be, the purpose of the test is surely not to eliminate the irreparable harm requirement. Rather, the purpose of the test is to underscore the flexibility which traditionally has characterized the law of equity. It permits the district court, in its discretion, to grant a preliminary injunction even where the plaintiff fails to show a strong or substantial probability of ultimate success on the merits of his claim, but where he at least shows serious questions going to the merits and irreparable harm which decidedly outweighs any potential harm to the defendant if an injunction is issued. Thus, the alternate test does not remove the irreparable harm requirement. Instead, it merely demonstrates that "(i)n general, the likelihood of success that need be shown (for a preliminary injunction) will vary inversely with the degree of injury the plaintiff will suffer absent an injunction." Metropolitan Detroit Plumbing & Mechanical Contractors Association v. H.E.W., 418 F. Supp. 585, 586 (E.D.Mich.1976), quoted with approval, Roth v. Bank of the Commonwealth, 583 F.2d 527, 537-38 (6th Cir. 1978).
33
A district court abuses its discretion when it grants a preliminary injunction without making specific findings of irreparable injury to the party seeking the injunction, and such an injunction must be vacated on appeal. See Dataphase Systems, Inc. v. CL Systems, Inc., 640 F.2d 109, 114 n.9 (8th Cir. 1981) (en banc); United States v. Spectro Foods Corp., 544 F.2d 1175, 1181 (3d Cir. 1976). Because the district court in this case failed to make any findings with regard to irreparable injury to Friendship, the preliminary injunction must be vacated and the cause remanded to the district court for further proceedings. We hasten to point out that we take no position on whether the record before us supports a finding of irreparable harm to Friendship. This is a matter for the district court to decide in the first instance. Likewise, we do not reach any of the other arguments raised by Michigan Brick on this appeal.
34
The order of the district court granting the preliminary injunction is vacated, and the cause is remanded for further proceedings not inconsistent with this opinion.
*
On December 31, 1981 Judge Weick retired from regular active service under 28 U.S.C. § 371(b) and became a Senior Circuit Judge
1
For reasons unrelated to this litigation, Century is no longer in business
2
Section 1 of the Sherman Act provides in relevant part: "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal...." 15 U.S.C. § 1 (1976)
3
Section 2 of the Sherman Act provides in relevant part that "(e)very person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony ...." 15 U.S.C. § 2 (1976)
4
We reach this conclusion after reading the district court's Memorandum Opinion of April 25, 1979 in conjunction with the brief filed by Friendship in the district court on April 2, 1979; the transcript of the oral argument before the district court on April 19, 1979; and the informal comments of the district judge following oral argument on April 19, 1979 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/262328/ | 324 F.2d 516
BRUCE CONSTRUCTION CORPORATION et al.v.The UNITED STATES.
No. 479-60.
United States Court of Claims.
November 15, 1963.
George S. Flint, New York City, for plaintiffs. Hugh Fulton and Fulton, Walter & Duncombe, New York City, were on the briefs.
Lawrence S. Smith, Washington, D. C., with whom was John W. Douglas, Asst. Atty. Gen., for defendant.
Before JONES, Chief Judge, and WHITAKER, LARAMORE, DURFEE and DAVIS, Judges.
DURFEE, Judge.
1
This case involves a claim for equitable adjustment for the alleged "additional value" of building block that was used in construction of buildings on the Air Force Base at Homestead, Florida.
2
The principal issue before us is whether plaintiffs have suffered damages as a result of defendant's rejection of a building block and the consequent requirement that plaintiffs substitute a different block, where the price paid for the two different blocks was the same.
3
Plaintiffs entered into a contract, DA 08-123-ENG-1595, with the Corps of Engineers on September 15, 1954. The contract involved construction of 18 airmen's dormitories, five mess halls and three bachelor officers' quarters. The total contract price was $4,867,605.30.
4
The buildings were to be constructed of concrete building block with exposed surfaces "of a fine texture generally produced in the Florida area which is suitable for painting as distinguished from `coarse textured block' produced for the purpose of receiving stucco or plaster * * *." (Paragraph 5-02(c) Materials).
5
Plaintiffs placed an order for suitable block with a supplier. Subsequently, on or about January of 1955 the contracting officer rejected the concrete block submitted by plaintiffs, and required the use of a "sand block." Plaintiffs then requested additional compensation in the amount of $312,016.60 to defray alleged additional costs. The matter was processed and Modifications Nos. 45 and 46, dated May 13, 1957, and April 4, 1958, respectively, were issued. These Modifications allowed plaintiffs $125,624.39 to compensate them for the cost of additional labor required in handling and placing the block, and for handling and hauling the rejected block. Plaintiffs' claim of $42,415.98 for the alleged additional value of the sand block over and above the value of the originally specified block was denied by the contracting officer and, ultimately, by the Armed Services Board of Contract Appeals.
6
Though the price which plaintiffs actually paid for the "sand block" was the same as they would have paid for the original block selected, they contend that the fair market value of the sand block was greater than the purchase price. Essentially then, plaintiffs argue that defendant should not benefit from the bargain price plaintiffs secured from their supplier, but should pay for the actual value of the sand block received by defendant, not merely its actual cost.
7
Though there is substantial controversy as to the market value of the sand block as of the time of the transaction between plaintiffs and their supplier, for purposes of defendant's motion for partial summary judgment, we are called upon only to decide the narrow question whether "cost" or "fair market value" controls in the award of an equitable adjustment.
8
Equitable adjustments in this context are simply corrective measures utilized to keep a contractor whole when the Government modifies a contract. Since the purpose underlying such adjustments is to safeguard the contractor against increased costs engendered by the modification, it appears patent that the measure of damages cannot be the value received by the Government, but must be more closely related to and contingent upon the altered position in which the contractor finds himself by reason of the modification. We held this view in the early case of McFerran v. United States, 39 Ct.Cl. 441 (1904). The contract there involved construction of structures at Fort Ethan Allen. The specifications called for the use of cut stone. The quartermaster in charge required that claimant furnish marble. Judge Weldon, speaking for the court in disallowing the claim, stated (39 Ct.Cl. p. 451):
9
"* * * The contract was performed in the country of the marble quarries, and as a result of that situation marble becomes a common material in the trimmings of houses. The findings on that point say that it is not shown that the cost of the marble used by the claimant by the direction of the quartermaster was in excess of the cost of good sound stone of best quality and even color. No allowance is made for this item."
10
Clearly, in that case the holding of the court was based on cost and not on fair market value. The instant case falls squarely under, and is controlled by, McFerran, supra.
11
The Armed Services Board of Contract Appeals, in its consideration of plaintiffs' case, assumed plaintiffs' statement of law, but held against them on a finding of fact that the price plaintiffs had paid for the stone was actually its fair market value. But fair market value is not the measure of damages in this case. This is not to say that in all cases, historical cost is to be the gauge. The more proper measure would seem to be a "reasonable cost." The concept of "reasonable cost" is not new. Indeed, it has been defined in the following manner:
12
"A cost is reasonable if, in its nature or amount, it does not exceed that which would be incurred by an ordinary prudent person in the conduct of competitive business. (A.S. P.R. 15-201.3 (1960))"
13
Use of the "reasonable cost" measure does not constitute "an objective and universal procedure, involving the determination of the reasonable value (or reasonable cost of any contractor similarly situated) of the work involved;"1 but determination of reasonable cost requires, in and of itself, an objective test. The particular situation in which a contractor found himself at the time the cost was incurred, Appeal of Wyman-Gordon Co., ASBCA 5100 (1959) and the exercise of the contractor's business judgment, Appeal of Walsh Construction Co., ASBCA 4014 (1957), are but two of the elements that may be examined before ascertaining whether or not a cost was "reasonable."
14
But the standard of reasonable cost "must be viewed in the light of a particular contractor's costs * * *"2 [emphasis added], and not the universal, objective determination of what the cost would have been to other contractors at large.
15
To say that "reasonable cost" rather than "historical cost" should be the measure does not depart from the test applied in the past, for the two terms are often synonymous. And where there is an alleged disparity between "historical" and "reasonable" costs, the historical costs are presumed reasonable.
16
Since the presumption is that a contractor's claimed cost is reasonable, the Government must carry the very heavy burden of showing that the claimed cost was of such a nature that it should not have been expended, or that the contractors' costs were more than were justified in the particular circumstance.3
17
Applying the "reasonable cost" test to plaintiffs' hypothetical situation of a contractor purchasing blocks in New York State and paying haulage to Florida,4 would probably result in a disallowance of the haulage costs since the Government could probably overcome the presumption of reasonableness. Conversely, where a claimant contract actually paid a price and then sought to recover on the grounds that the price actually paid did not constitute a reasonable cost, the burden would then be upon claimant to overcome the presumption of reasonableness. This is essentially the position plaintiffs found themselves in both here and before the ASBCA. Plaintiffs did not introduce sufficient or substantial evidence to overcome the presumption that the price paid by them did reflect a reasonable cost of the materials. Indeed, the only evidence introduced was offered to prove the fair market value, and not to prove the reasonableness of the cost.
18
Though considerable uncertainty seems to exist as to what test has been applied in the past,5 we think that this court and other courts dealing with the question have applied the reasonable cost test either implicitly or explicitly. For example, the Supreme Court, in United States v. Callahan Walker Const. Co., 317 U.S. 56 p. 61, 63 S.Ct. 113, 115, 87 L.Ed. 49 (1942), a case involving an equitable adjustment for additional work performed, pointed out that, "An `equitable adjustment' * * * involved merely the ascertainment of the cost of digging, moving, and placing earth, and the addition to that cost of a reasonable and customary allowance for profit * * *." Though the Supreme Court was dealing only with the question of administrative remedies provided in the contract, there is no question but that the decision points to application of a "reasonable cost" test in determining damages.
19
No doubt some of the uncertainty in this area is due to the fact that in some cases historical or actual cost, reasonable cost and fair market value are the same, while in others, reasonable cost may be the same as either fair market value or historical or actual cost, and in still others, reasonable cost may be neither fair market value nor historical or actual cost.
20
As plaintiffs themselves point out at p. 6 of their brief:
21
"* * * the test of either a downward or upward equitable adjustment should not be actual costs or actual bids, but what the reasonable cost would be in each instance. In the ordinary case, this frequently accords with actual cost. But where it does not, this court has refused to accept actual cost to the contractor as determinative." [Emphasis supplied.]
22
To support this statement, plaintiffs cite F. H. McGraw and Co. v. United States, 130 F.Supp. 394, 131 Ct.Cl. 501 (1955), and Oliver-Finnie Co. v. United States, 150 Ct.Cl. 189, 279 F.2d 498 (1960). From this statement, however, plaintiffs jump to the assumption that reasonable cost is in identity with fair market value. But here plaintiffs err. The two terms are not synonymous. Indeed, in the very cases cited by plaintiffs above, the court held that the determination of damages using a basis of actual cost was necessary "* * * where there is nothing in the record to show that plaintiff's bid was too low, and where it has not been proved that plaintiff's costs were unreasonable, or that plaintiff was itself responsible for any increased costs * * *." Oliver-Finnie Co., supra, 150 Ct.Cl. at 200, 279 F.2d at 506. [Emphasis supplied.] As we said above, there is a presumption that actual costs paid are reasonable. That presumption must be overcome by whichever party alleges its unreasonableness.
23
Plaintiffs here have not been able to overcome the presumption that their actual costs were reasonable, hence they may not recover. From the record, it is clear that the only evidence plaintiffs introduced tended to prove the fair market value of the blocks some eighteen months after the transaction. We are here not required to say that evidence of fair market value subsequent to a transaction is sufficient to prove fair market value at the time of transaction. We do say, however, that evidence of the fair market value of an item some eighteen months after a transaction involving the item does not rebut the presumption that the cost of the item was reasonable at the time of the transaction.
24
Defendant's motion for partial summary judgment is granted, and plaintiff's cross motion is denied. That portion of the petition involving plaintiffs' claim for $42,415.98 for "additional value" of building block, as set forth in the First Count of the petition is, accordingly, dismissed.
Notes:
1
Spector, Confusion in the Concept of the Equitable Adjustment in Government Contracts. 22 Fed.B.J. 5, at 6 (1962)
2
McBride, Confusion in the Concept of Equitable Adjustments in Government Contracts: A Reply 22 Fed.B.J. 235 at 240
3
Supra, note 2 at 240
4
Plaintiffs' brief p. 4
5
I. e., footnotes 1 and 2 supra. See also Ginsburg, The Measure of Equitable Adjustments for Change Orders Under Fixed-Price Contracts. Mil.L.Rev. (DA Pam 27-100-14 Oct. 61) p. 123
25
LARAMORE, Judge (concurring in the result).
26
I concur for the reason that the only evidence of value at the time was the invoice showing the price plaintiff paid for the blocks. In the absence of any other evidence of value at the time of the purchase, I would adopt the invoice price as the proper measure of value. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3053950/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSHUA RICHTER,
Petitioner-Appellant, No. 06-15614
v.
D.C. No.
CV-01-00643-JKS
R. Q. HICKMAN, Warden; CAL A.
TERHUNE; ERNIE ROE, ORDER
Respondents-Appellees.
Filed November 10, 2008
ORDER
KOZINSKI, Chief Judge:
Upon the vote of a majority of nonrecused active judges, it
is ordered that this case be reheard en banc pursuant to Circuit
Rule 35-3. The three-judge panel opinion shall not be cited as
precedent by or to any court of the Ninth Circuit.
Judge Callahan did not participate in the deliberations or
vote in this case.
15417
PRINTED FOR
ADMINISTRATIVE OFFICE—U.S. COURTS
BY THOMSON REUTERS/WEST—SAN FRANCISCO
The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2008 Thomson Reuters/West. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2857987/ | IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-113-CR
STERLING ALLEN,
a/k/a STERLING CLARENCE ALLEN, JR.,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. 102,587, HONORABLE JON N. WISSER, JUDGE
PER CURIAM
A jury found appellant guilty of theft of property having a value greater than $750
but less than $20,000. Tex. Penal Code Ann. § 31.03 (1989 & Supp. 1992). The jury assessed
punishment, enhanced by two previous felony conviction, at imprisonment for fifteen years and
a $2000 fine. After being admonished by the court of the disadvantages of self-representation,
appellant waived counsel on appeal.
The statement of facts was filed on November 20, 1991. On January 27, 1992, the
Clerk of this Court notified appellant that his brief was overdue. Appellant did not respond to this
notice, and no brief has been tendered for filing. Because appellant represents himself, he bears
full responsibility for the failure to file a brief. We will therefore consider this appeal without
briefs.
We have examined the transcript and statement of facts. We find no fundamental
error or other matter that should be considered in the interest of justice.
The judgment of conviction is affirmed.
[Before Justices Powers, Jones and Kidd]
Affirmed
Filed: February 26, 1992
[Do Not Publish] | 01-03-2023 | 09-05-2015 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.